All Phase Electric & Maintenance, Inc.

Plain-English summary

OSHA cited All Phase Electric for two serious electrical violations and one other-than-serious posting violation, with $240 in proposed penalties. The company received the citations on December 18, 1989, but did not submit a written notice of contest within the 15-working-day period ending January 10, 1990. Its next-day letter requested an informal conference rather than stating an intent to contest the citations, and an oral request was not a valid notice of contest. Because no notice of contest was filed on time, the Commission did not need to decide whether the company's holiday miscalculation was excusable. It affirmed dismissal of the case, leaving the citations as final orders by operation of law.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.404(b)(1)(i); 29 C.F.R. § 1926.405(a)(2)(ii)(E); 29 C.F.R. § 1903.2(a)(1)
• Outcome: The late contest was dismissed, and the citations became final with $240 in proposed penalties.
• Key point: A request for an informal conference, or an oral request to contest, does not satisfy the requirement for a timely written notice of contest.

Full text (OSHRC public release)

Docket No. 90-0505

SECRETARY OF LABOR,

Complainant,

v.

ALL PHASE ELECTRIC & MAINTENANCE, INC.,

Respondent.

OSHRC Docket No. 90-0505

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner.[[1]]

BY THE COMMISSION:

Before us on review is an order of Administrative Law Judge
Edwin G. Salyers granting the Secretary's motion to dismiss a written notice of contest of
Respondent, All Phase Electric & Maintenance, Inc. "All Phase"), as untimely
filed. All Phase seeks relief from the judge's order, alleging that it miscalculated the
final day for filing a timely notice of contest under the fifteen-working-day period
provided in 29 C.F.R. � 1903.21(c). We conclude that even if this alleged miscalculation
constituted a "mistake" or "excusable neglect" within the meaning of
Rule 60(b) of the Federal Rules of Civil Procedure, All Phase would still not be entitled
to relief under the rule because it did not contest the citation in its letter of January
11, 1990 to Occupational Safety and Health Administration (OSHA) Area Director Lawrence
Falck. For the reasons set forth below, we affirm the judge's disposition of the case.

Factual Background and Chronology

In October 1989, OSHA conducted an inspection of a worksite in
Brandon, Florida, where All Phase, a Tampa-based firm, was engaged in work as an
electrical contractor. As a result of that inspection, OSHA issued two citations to All
Phase, alleging serious violations of the electrical standards published at 29 C.F.R. ��
1926.404 (b) (1) (i) and 1926.405 (a) (2) (ii) (E), and one other-than-serious violation
of the OSHA poster regulation, published at 29 C.F.R. � 1903.2(a)(1). The total proposed
penalty was $240.

All Phase's president, Paul Puleo, who has represented All
Phase pro se throughout these proceedings, acknowledged that he personally
"accepted delivery of the citations on December 18, 1989," which was a Monday.
Under section 10(a) of the Act, 29 U.S.C. � 659(a), All Phase had fifteen working days to
file its notice of contest. In keeping with the Secretary's published guidelines regarding
the computation of time at 29 C.F.R. � 1903.21(c), All Phase's filing period did not
include four weekend days and two Federal holidays -- Christmas on Monday, December 25,
and New Year's Day on Monday, January 1. Thus, All Phase had until Tuesday, January 10,
1990 to file its notice of contest.

It is undisputed that All Phase did not contest the citation during this
fifteen-working-day period. Accordingly, the citations became final orders of the
Commission by operation of law on January 10, 1990. The next day, on January 11, 1990, All
Phase's president Puleo made a telephone call to the OSHA area office in Tampa. The
Secretary does not recount the details of this telephone conversation. In a letter to Area
Director Falck dated the same day, Puleo stated:

I respectfully request an informal conference on the enclosed
citation. Because of the numerous Holidays in the last 3 weeks, my 15 day count did not
coincide with your office's 15 day count (we differed by 1 day). Accordingly my original
verbal request was rudely denied by your office. Therefore, I would appreciate your
reconsideration for an informal conference.

In a letter dated January 24, Area Director Falck responded by
informing Puleo that the citations had become a final order on January 10, 1990, and that
both the written "request for an informal conference received on January 16" and
the earlier "verbal request [which] was received one day after the citation became a
final order" were untimely. Falck informed Puleo that, if he disagreed with this
decision, he could file a written appeal with the Commission's Executive Secretary.

On February 1, Puleo wrote to the Commission's Executive
Secretary, stating in pertinent part:

Please be advised this letter is an appeal to the decision
rendered in the enclosed letter from Mr. Falck, Area Director. With the confusion of the
Christmas Holidays the 15 day count was off by 1 day and my verbal request to contest the
citation was denied. Also my written appeal to Mr. Falck explaining the unique
circumstances was rejected.

. . . . I firmly believe our Company is being singled out by the Tampa OSHA Office and
unfairly cited, rudely communicated with and excessively fined.

After the case was docketed with the Commission, the Secretary filed a motion to dismiss
in which the Secretary treats Puleo's February 1 letter as All Phase's notice of contest
and seeks dismissal of the notice of contest on the ground that it was untimely filed. In
support of this motion, the Secretary subsequently filed the affidavit of Area Director
Falck and a copy of the informational booklet routinely supplied by the OSHA area office
to employers informing them of the procedures for contesting citations. Area Director
Falck's affidavit states: "I caused a search to be made of the official record in
this case and found that no notice of contest was filed with or through this office by
this employer with respect to the above Citations and Notifications of Penalty until
February 1, 1990, approximately 45 days after receipt of the Citations and Notifications
of Penalty by the respondent."

After receiving a letter dated March 23, 1990 from Judge
Salyers informing All Phase that its notice of contest might be dismissed, All Phase
responded to the Secretary's motion in an April 3, 1990 letter from Puleo to the judge. In
this letter, Puleo indicated that the citations had arrived at a hectic time when All
Phase's entire management team was away from the office of an annual management retreat
and its employees were working "shortened work week[s]", including the week
before the Christmas holidays, which was the week the citation arrived. Puleo also
expanded on his earlier claim about miscalculating the end of the fifteen- working-day
contest period: "All Phase Electric had counted the days on the calendar, with all
good intentions; however, the count was off by just one day because we thought the
governmental offices had more days off for the holidays." The letter also contains a
statement that could be construed as a claim that the violations in question were due to
unpreventable employee misconduct: "[Trying to make a better workplace for my
employees] is very difficult to do at times, especially when the employees themselves are
not attempting to follow the regulations as set forth by OSHA and All Phase
Electric."

After considering the Secretary's motion and the employer's
response, Judge Salyers entered his order granting the motion. Although he treated All
Phase's first letter (dated January 11) as its notice of contest, he found that it
was not filed within the statutory time limit. He further found that nothing in the
Respondent's April 3 letter "would afford respondent relief from the late filing
under Rule 60 of the Federal Rules of Civil Procedure," citing Roy Kay, Inc., 13
BNA OSHC 2021, 1989 CCH OSHD � 28,406 (No. 88-1748, 1989), and Louisiana Pacific
Corp., 13 BNA OSHC 2020, 1989 CCH OSHD � 28,409 (No. 86-1266, 1989).

Analysis

The direction for review in this case raises the question of whether the Respondent's
miscalculation of the final day for filing a notice of contest should be classified as a
"mistake" or "excusable neglect" within the meaning of Rule 60 (b) of
the Federal Rules of Civil Procedure. However, we need not reach the issue of whether this
lateness was excusable because we conclude that All Phase did not file a notice of
contest. In its January 11, 1990 letter to the Secretary, Respondent did not express an
intent to contest the citations; rather, in that letter, Respondent simply requested an
informal conference. We also note that Puleo's January 11, 1990 telephone call to the area
office was not a notice of contest. In a letter written three weeks after the citation
became a final order, Puleo described that telephone call as "a verbal request to
contest the citation." However, the Commission has held that an oral notice of
contest is not a sufficient means of contesting a citation, even if it was made within the
fifteen-working-day period. Acrom Construction Services, Inc., 15 BNA OSHC 1123,
1991 CCH OSHD � 29,393 (No. 88-2291, 1991).

Accordingly, we conclude that All Phase failed to timely
contest the citations in this case, and we affirm the order of the administrative law
judge granting the Secretary's motion to dismiss.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: October 4, 1991

SECRETARY OF LABOR,

Complainant,

v.

ALL PHASE ELECTRIC &

MAINTENANCE, INC.,

Respondent.

OSHRC Docket No. 90-0505

ORDER GRANTING MOTION TO

DISMISS NOTICE OF CONTEST

This matter is before the undersigned upon the Secretary's
Motion to Dismiss Notice of Contest as untimely filed and supported by an affidavit of the
Area Director.

The Occupational Safety and Health Act (29 U. S. C. � 651, et
seq. ) specifies in section 10 that a notice of contest not filed with the Secretary
within fifteen (15) working days "shall be deemed a final order of the Commission and
not subject to review of any court or agency."

It appears in the record that the citation and notification of
penalty in this matter was issued by the Area Director on December 13, 1989, and was
received by respondent on December 18, 1989. Respondent's notification of intent to
contest dated January 11, 1990, was received in the Area Director's office on January 16,
1990. Accordingly, respondent's notice of contest was not filed within the period
specified in the statute.

Upon receipt of the Secretary's motion, this court directed a
letter to Mr. Paul Puleo, president of respondent corporation, dated March 23, 1990,
requesting to be advised of any reasons why this motion should not be granted (Ex. J-12).
The court has now received a letter from respondent dated April 3, 1990 (Ex. J-13), and
has considered its contents. In essence, nothing contained therein would afford respondent
relief from the late filing under Rule 60 of the Federal Rules of Civil Procedure.

The circumstances of this case are controlled by Roy Kay,
Inc., 13 BNA OSHC 2021, 1989 CCH OSHD � 28,406 (No. 88-1748, 1989), and Louisiana
Pacific Corp., 13 BNA OSHC 2020, 1989 CCH OSHD 28,409 (No. 86-1266, 1989).
Accordingly, the Secretary's motion is granted, respondent's notice of contest is
dismissed, and the Secretary's citation has become a final order of the Review Commission
by operation of law.

Dated this 24th day of May, 1990.

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1]] Commissioner Montoya did not participate in the deliberation or issuance of this
decision.