Craig Mechanical, Inc.

Plain-English summary

OSHA issued Craig Mechanical one serious and several other-than-serious citations with $825 in proposed penalties. The owner called OSHA twice within the 15-working-day contest period, said he wanted the charges dismissed, and was told to wait for the area director, who never returned the calls. He understood that time was running out but did not realize the contest had to be written and waited five months before sending a letter to the Commission. The Commission held that the citation clearly required a written notice and that neither excusable neglect nor government misrepresentation justified relief from the final order. It therefore treated the citations and penalties as final. Commissioner Montoya dissented, concluding that OSHA's misleading advice and failure to respond warranted equitable relief.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(b)(1), 1904.2(a), 1910.20(g)(2), 1926.59(e)(1)(i), and 1926.59(e)(4).
• Outcome: Procedural. The late notice of contest was rejected, leaving the citations and $825 in proposed penalties as a final order.
• Key point: An employer must file a written notice of contest within 15 working days; telephone objections and unanswered OSHA calls ordinarily do not preserve contest rights.

Full text (OSHRC public release)

OCCU.PATIONAL SAF~~~~~E~~~~~c~EVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.Wm- 9th Floor
Washington, DC 20036-3419

                                                                                        FAX:
                                                      .
                                                      .                                 COM (202) 606-5050
                                                                                        FTS (202) 6ce5050
                                                      ..

SECRETARY OF LABOR,
..
Complainant, ..
..
v. .. OSHRC Docket No. 92-0372-s

CRAIG MECHANICAL, INC.,

                 Respondent.



                                             DECISION

BEFORE: WEISBERG, Chairman, FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
At issue in this case is whether the Respondent’s failure to file a written notice of
contest within the 15day statutory period’ was the result of excusable neglect or was due
to misrepresentations by the Secretary, thus entitling the Respondent to relief from a
Commission final order under Fed. R. Civ. P. 60(b).2 The judge granted relief. For the

‘Section 10(a) of the Occupational Safety and Health Act (“the Act”), 29 U.S.C. 0 659(a),
provides in relevant part:

   If, within fifteen working days from the receipt of the notice issued by the
   Secretary the employer fails to notify the Secretary that he intends to contest
   the citation . . . the citation and the [penalty] assessment, as proposed, shall
   be deemed a final order of the Commission and not subject to review by any
   court or agency.

Fed. R. Civ. P. 60(b) provides in relevant part that “[o]n motion and upon such terms as
are just, the court may relieve a party or his legal representative :from a final judgment,
order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect[;] . . . (3) fraud . . . misrepresentation, or other misconduct of an adverse
party[;]l l
or (6) any other reason justifying relief from the operation of the judgment.”
l
 2

reasons stated below, we find that the judge erred and that the Respondent is not entitled
to relief.
BACKGROUND
Craig Mechanical, Inc., a small mechanical contractor, was among a number of
employers working at a construction site in Houston, Texas. On August 12, 1991, following
an inspection by the Occupational Safety and Health Administration (“OSHA”), the
Secretary of Labor issued two citations to Craig Mechanical, including one serious citation
alleging a failure to guard a floor opening and several other-than-serious citations alleging
recordkeeping and hazard communication violations. Penalties amounting to $825 were
proposed.
Freddie Craig, who owned the company, telephoned twice to complain to the OSHA
area office in August 1991, within the statutory 15business-day period, leaving messages for
the area director both times. He testified that during his conversations with the person on
the other end of the line, he made clear that he was not interested only in an informal
conference; he wanted to contest the citations. He stated that “I asked them . . . What do
I do with these . . . they are not a just charge . . . Tell me what I have to do to have these
dismissed. . . . I am not an attorney; I need someone that can read this and tell me what
it actually says and means. . . . I see the part where I have to pay the fines, and . . what l

you are saying we did wrong or were in fault. But [the citations] are not true.”
Both times, OSHA personnel took his name and number and a brief description of
the purpose of his call and assured him that the area director, who was “out of town,” knew
about this problem and that Craig should just wait and speak with him when he returned.
Craig learned later that the area director was at this time in the process of being transferred
to another nearby OSHA office in Houston. Craig further testified that the second time he
called, he said “my time is running out.“3 He stated that although he understood that he

3We note th at the cover letter accompanying the citations advises Craig that he may request
an informal conference to discuss the citations but that in so doing, Craig should “keep in
mind that a writtenletter of intent to contest” [emphasis supplied] must still be submitted
in fifteen working days and that, specifically, the contest period is “not interrupted by an
informal conference.”
 3

had fifteen days to contest, he did not realize that his protest had to be in writing. In his

own words, it was true that the people on the other end of the line did not tell him “just
relax,” but they also did not say “no matter what, by such-and-such a date, you better file,
or you are going to lose your rights.” At the same time, there is no evidence that Craig
specifically asked whether he still had to file a written notice of contest, nor is there any
indication that any OSHA representative told him that the telephone call could serve as a
substitute for a written letter. Craig testified that after leaving the second message, “I was
thinking since I had . . . contacted his offke prior to this time that I was in the legal realm
of what I needed to do . . . .”
No one from OSHA called Craig back, before or after the deadline. “At this time --
and to tell you the honest truth, after this -- these calls, and I didn’t get my call returned
back, I didn’t think any more about it. I just -- went on about my business. I never once
again thought anything about it . . . .” He testified that whenever he received a penalty
collection notice from OSHA (October 29 and November 26, 1991), he “got right back on
the phone with the Houston office here.” He did not elaborate on the nature of these calls.
When the January 14, 1992 notice from a collection agency arrived, he visited the OSHA
area office in person. He was instructed to write a letter to the Commission explaining his
position.
On January 28, 1992, five months after the citations had been issued, Craig
Mechanical sent a letter contesting the citations directly to the Review Commission. The
case was docketed, but on April 6, 1992, the Secretary filed a motion to dismiss the notice
of contest as untimely. Representing his company pro se, Craig requested simplified
proceedings, and a hearing was held on May 26, 1992. In a July 20, 1992 decision, an
administrative law judge granted Craig Mechanical relief from the final order under Fed. R.
Civ. P. 60(b), finding that the untimely notice of contest was due to excusable neglect. In
granting relief, the judge relied on Keefe Earth Boring Co., 14 BNA OSHC 2187, 1991 CCH
OSHD Tl29,277 (No. 88-2521, 1991).
The Secretary petitioned for review, arguing that Rule 60(b) does not apply because
section 10(a) of the Act deprives the Commission of jurisdiction, and that even if Rule 60(b)
does apply, Craig’s conduct, attributable to Craig Mechanical, did not constitute excusable
 4

neglect. The Secretary adds that this is not a case in which government misconduct estops
the Secretary from claiming the notice of contest was untimely.
DISCUSSION
In Jackson Rrsocs., 16 BNA OSHC 1261, 1993 CCH OSHD li 30,140 (No. 91-0438,
1993), the Commission reaffirmed its authority to grant relief from a final order under Rule
60(b). In order for Craig Mechanical to be entitled to relief here, the facts would have to
show that its failure to file a timely written notice of contest was due to excusable neglect
or was the result of misrepresentation or other misconduct on the Secretary’s part
warranting relief. The burden is on the Respondent to show sufficient basis for the relief.
Roy Kay, Inc., 13 BNA OSHC 2021, 1989 CCH OSHD lI 28,406 (NO. 88-1748, 1989) and
cases cited.
When the 15.day deadline passes without a dissatisfied employer having filed a
written notice of contest, the failure to file is very often traceable to the fact that it did not
read the face of the citation with sufficient care. E.g., Keefe; Secretary of Labor v. Barrett0
Granitb, 830 F.2d 396 (1st Cir. 1987); Pav-SaverMfg. Co., 12 BNA OSHC 2001, 2006-07,
1986-87 CCH OSHD lI 27,676, pp. 36,104.05 (No. 84-733,1986), rev’d on othergrozuuis, 933
F.2d 528 (7th Cir. 1991); Keppel’s, Inc., 7 BNA OSHC 1442,1979 CCH OSHD ll 23,622 (No.
77-3020, 1979).4 On occasion, information or an impression generated by another source
contradicts or overshadows the directions on the citation, or distracts the employer from ever
reading it. If this other source is an OSHA representative, as alleged here, the case is
analyzed under 60(b)(3) and the issue is whether the employer’s failure to file was
engendered by misconduct on OSHA’s part. See, e.g., Jackson (compliance officers); Elmer
Conm. Cop., 12 BNA OSHC 1002,1984-85 CCH OSHD II 27,050 (No. 83040,1984) (OSHA
supervisor); Me&t Elec. Co., 9 BNA OSHC 2088,198l CCH OSHD ll 25,556 (No. 77-3772,
1981) (area director); Henry C. Beck Co., 8 BNA OSHC 1395, 1980 CCH OSHD lf 24,484

40ur dissenting colleague criticizes the clarity of the citation face page and other OSHA
documents, claiming that the “tide” of late notice of contest. problems proves her point.
Commission records indicate, however, that between September 1993 and February 1994,
of the approximately 1,650 cases assigned to the Chief Administrative Law Judge, only about
thirty, or less than two percent, involved Rule 60(b) motions. All contested cases are initially
assigned to the Chief Administrative Law Judge.
 5

(NO. 11864,198O) (same); BJi Hughes, Inc., 7 BNA OSHC 1471,1979 CCH OSHD li 23,675
(No. 76-2165, 1979) ( same). If, on the other hand, the source is someone other than an
OSHA representative, the case is analyzed under Rule 60(b)(l), and the issue is whether the
employer’s neglect in failing to file was excusable. E.g., Byrd Produce Co., 16 BNA OSHC
1268, 1993 CCH OSHD II 30,139 (No. 91-0823, 1993) ( consolidated) (attorney); Jackson

&YOU. (clerical assistant); EK Constr. Co., 15 BNA OSHC 1165, 1991-93 CCH OSHD
ll 29,412 (No. 90-2460, 1991) (person assigned to arrange the informal conference); Acrom
Constr. Sent, Inc., 15 BNA OSHC 1123, 1125, 1991 CCH OSHD ll 29,393, p. 39,563 (No.
88-2291, 1991) (project manager).
Relief under Rule 60(b)(l): Excusable Neglect
In this case, the judge found that Craig Mechanical’s failure to file a timely notice of
contest was due to excusable neglect. The reason offered by Craig Mechanical to excuse its
neglect in timely filing a written notice of contest is Craig’s reliance on the telephone calls
to OSHA. He testified, “I know this is not a good excuse, probably.’ But I assume I am in
good hands when I am speaking to the people that represent the Director there, saying he
is aware of my problems.” As the judge noted in his decision, however, we have held that
lack of care or ignorance of procedural rules does not constitute excusable neglect. See, e.g.,
Roy Kay, Inc. and cases cited. In this case, the only rule Craig had to know to protect his
company’s rights was the 15day deadline for mailing notices of contest, and that “rule” was
unequivocally stated on the face of the citation he received and which he acknowledges
reading. Craig’s concern, expressed during his second phone call, that he was “running out
of time” belies his assertion that he believed he was “in the legal realm” where no further
action was required on his part? While Craig may have hoped that a message left for the
area director and an assurance that the director was aware of his “problem” and would call -
him back would have disposed of the citation, nothing that he said, or heard, during those

51ndeed, Craig testified that he had notes on the second call because “I am looking at the
29th [the notice was due one week later], and I am saying, you know, I better start
documenting something here . . . .” Moreover, notwithstanding Craig’s telephone calls
reacting to two OSHA penalty collection notices, he waited five months to commit his
protest to writing, thus exacerbating the effect of his initial failure to do so. J
 6

phone calls contradicted the plain language in the citation obliging him to file a timely
written notice of contest or accept the finality of the terms of the citation.
1
we therefore find
that the judge erred in finding excusab 1e neglect and in granting relief under Rule 60(b)( 1).
Keefe, the case the judge relied on, does not require a different result. Contrary to
the judge’s interpretation, that case did not rest solely on the employer’s receipt of
explanatory literature accompanying the citation. The Commission did mention that
“OSHA’s booklet provided additional, straightforward explanations,” but concluded that “[i]f
President Keefe had carefully read even portions of the written instructions stated and
reiterated on the face of the . . . citations . . . [and had exercised] due diligence, [he] could
have avoided his errors.” Keefe, 14 BNA OSHC at 2192, 1991 CCH OSHD at p. 39,270
(emphasis added). Due diligence requires that even a layman unfamiliar with OSHA
procedures read the face of the citation carefully.6 Receipt of additional explanatory
materials is not a prerequisite for adequate notification under the Act. The citation itself
bears the essential information alerting an employer how to preserve its rights.’ Moreover,
OSHA’s failure to return an employer’s calls does not serve as a basis for giving Craig
Mechanical relief. The language on the citation does not provide for any exception to the
requirement that an employer notify OSHA in accordance with its regulations, i.e., in writing,
if it wants to contest a citation.

‘In determining what constituted due diligence in this case, the judge focused on certain
language in Keefe: “relief may be justified ‘if the party offers a credible explanation for the
delay that does not exhibit disregard for the judicial proceedings,’ revealing ‘no intent to
thwart’ or ‘reckless disregard for the effect of its conduct.“’ Keefe, 14 BNA OSHC at 2192,
1991 CCH OSHD at p. 39,270, citing Shepard Claims Serv., Inc. v. WfllliamDamah & Assocs.,
796 F.2d 190, 194-95 (6th Cir. 1986). That language actually refers to an interpretation of
the “good cause” standard set forth in Fed. R. Civ. P. 55(c), a “somewhat more lenient
standard” than that employed in Rule 60(b) motions. Although the elements for relief
under Rule 55(c) and Rule 60(b) are “substantially the same,” the standards are applied
“more stringently” in a Rule 60(b) motion. Shepard Claims, 796 F.2d at 193-94.

‘In any event, it is not clear from the record that Craig did not receive additional OSHA
explanatory materials. The citation he received referred to an “enclosed booklet” outlining
employer rights and responsibilities. When asked whether he received the OS-IA 3000
pamphlet at the time he received the citation, Craig responded, “I received about four
pamphlets from OSHA,” but he did not specify which ones.
 h summary, Craig Mechanical’s neglect was not excusable. See, e.g., Jackon ~SWS.
and Byrd produce. We therefore find that Craig Mechanical is not entitled to relief under
Rule 6O(b)( 1).
Relief under Rule 60(b)(3): Athtik Marine Equitable Tolling
The judge further found that while Rule 60(b) relief may be granted due to
misrepresentation or other misconduct of an adverse party, no such grounds existed in this
case. We agree. As we observed in Jackson, the principle of equitable tolling set forth in
Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975), is essentially embodied in Rule
60(b)(3)! We do not condone or approve of the OSHA area office’s treatment of Craig
in this case and the area director’s failure to return Craig’s calls, and expect not to see such
conduct occur in the future.g However, we find that the vague assurances by clerical
personnel here and failure to return telephone calls during an area director’s transition do
not rise to the level of conduct on the Government’s part sufficient to warrant relief under
Rule 60(b)(3).‘* a Schweiker v. Hansen, 450 U.S. at 786, 789 (1981) (social security
administration representative’s conduct -- telling a claimant that she was not eligible for
benefits when she was and neglecting to tell her to file a written application -- was
determined to be minor and not the cause of claimant’s failure to take action). Finally, our
cases suggest that relief is appropriate only when prejudicial Government misconduct is
coupled with a reasonable degree of diligence by the employer, and we do not find that

?Ihe Fifth Circuit never mentioned Rule 60(b)(3) in Atlantic Marine. However, the same
equitable principles are reflected both in Atlantic Make’s “deception or failure to follow
proper procedures” language and in Rule 60(b)(3)‘s “misrepresentation or other
misconduct” language.

‘Chairman Weisbexg notes that the careless and unresponsive treatment of Craig in this case
by the OSHA area office took place in August 1991. With a new, concerted govemment-
wide effort to “reinvent government and improve customer service,” he hopes and expects
that this type of conduct will not occur in the future. While the customer is not always right,
the customer does have a right to have phone calls to OSHA responded to promptly and
courteously.

‘*Indeed, given the nature of this conduct, the logical limitations of our dissenting colleague’s
“exception” to the plain language of the citation and to the statutory deadline itself are

• unclear.
   8

degree of diligence on the part of Craig here. See e.g., Henry C. Beck; see also Iwin V.
VeteransAdmin., 111 S.Ct. 453, 457-58 (1990).
ORDER
Accordingly, we find that Craig Mechanical’s notice of contest was untimely. The
citations have become a final order of the Commission under section 10(a) of the Act, 29
U.S.C. 5 659(a), and Craig Mechanical is not entitled under Rule 60(b) to relief Tom that
final order.

                                                                               l




                                                        Stuart E. Weisberg
                                                        Chairman



                                                        Edwin G. Foulke, Jr.
                                                        Commission&r

Dated: May 18, 1994 1
 9

MONTOYA, Commissioner, dissenting:
I agree with my colleagues that this case is governed by Fed. R. Civ. P. 60(b)(3) as
opposed to Rule 60(b)(l). I disagree, however, that Craig Mechanical failed to establish a
basis for relief under Rule 60(b)(3) and the principles of equitable tolling expressed in
Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975).
The majority holds that the “vague assurances” by OSHA personnel and the “failure
to return telephone calls” do not rise to the level of conduct on the Government’s part
sufficient to warrant relief under Rule 60(b)(3). In my view, however, Craig Mechanical has
established far more than the majority seems to think. It has established that its failure to
file a timely notice of contest resulted from, at least in part, “misrepresentations, or other
misconduct” of OSHA personnel within the meaning of Rule 60(b)(3), as well as their
“deception or failure to follow proper procedures” as stated in Atlantic Marine; id. at 478.
Such a showing entitles Craig Mechanical to relief under both tests.
I. Relief under Rule 60(b)(3) and At&z& Mixhe
The critical facts in this case are, of course, what the employer told OSHA and what
OSHA told the employer. Mr. Craig, acting for his companypro se (without a lawyer), made
it clear that he was not simply interested in arranging an informal conference; he wanted to
contest the citations because the allegations “are not true.” The purpose of his call was to
obtain information about how to contest the citations: “Tell me what I have to do to have
these dismissed.” He explained that he was not a lawyer, did not understand the instructions
on the citation, and needed someone to explain in plain English what “the citation actually
says and means?
.
In response to this unequivocal plea for help, OSHA told Craig, “Well, your best
thing is just wait, and speak to Mr. Reina when he comes back.” Given the information
OSHA had in its possession about Craig’s intention and the nature of his call, it was
misrepresentation or misconduct for OSHA to tell him that he should wait until the area
director got back. Not only was there no need for him to wait, but that instruction was the

“Given this unrebutted testimony, the majority errs in suggesting that the fault lay in Craig’s
failure to carefully read the citation.
 10

single most prejudicial piece of advice OSHA could have offered. All Craig wanted was an
explanation of the procedures he was required to follow to contest the citations. Under the

circumstances, OSHA’s instructions were misleading because they implied that Craig was not
required to file a written notice of contest until he heard from the area director. He should
have been informed in a straightforward manner that if he wanted to contest he would have
to put it in writing within the 15.working-day deadline.
The law supports granting relief on the facts of this case.
In addition to fraud, 60(b)(3) includes “misrepresentation or other misconduct
of an adverse party.” Because Rule 60(b) is remedial and to be construed
liberally, and because of the comprehensive sweep of 60(b)(3)[,] any fraud,
misrepresentation, circumvention or other wrongful act of a party in obtaining
a judgment so that it is inequitable for him to retain the benefit thereof,
constitute[s] grounds for relief within the intendment of 60(b)(3).

Moore’s Federal Practice, Vol. 7, ll 60.24[5] (2d Ed. 1993). In my view, once a response was
promised, as it was here, OSHA’s failure to assure that someone in a position of authority
responded to Craig’s straightforward request for help amounted to the sort of deceptive non-
disclosure that Rule 60(b)(3) was meant to remedy.
We have in the past held OSHA responsible for “imrxoper
A silence” when confronted
with an employer whose misunderstanding of the contest process is unmistakable. See Henry
C. Beck Co., 8 BNA OSHC 1395, 1980 CCH OSHD 7l 24,484 (No. 11864, 1980). A
reasonable person unfamiliar with the legal technicalities of the contest process who trusts
in the Government not to deliberately place him in a worse position might well regard ’
OSHA’s silence as a tacit agreement to preserve the status quo until further notice.12
Moreover, nowhere in the materials OSHA sends to an employer does it warn that the
statutory 15.day deadline cannot be extended. Similarly, we recently held in Jackson Assoc.,
16 BNA OSHC 1261,1266, 1993 CCH OSHD lI 30,140, p. 41,452 (No. 91.0438,1993), that
“the possibility that [the employer] was misled into believing that a written notice of contest

12Contrary to the majority, I interpret Craig’s taking of careful notes, as well as his continued
responding by telephone to OSHA when he began receiving penalty notices, as further
indications of his good faith reliance on the original advice of OSHA personnel.
 11

was not required, would, if proven, provide a basis for relief under Atlantic Marine.” Here,

Craig has proven that he was so misled.
The majority recognized in Choice EZectricCop., 14 BNA OSHC 1899, 1900-1901,
1987-90 CCH OSHD ll 29,141,38,942 (No. 88-1393, 1990), that the Commission is “sensitive
to the needs of parties appearing pro se and recognizes that persons who are not trained in
the law may require additional consideration of their circumstances.” Particularly in light
of Craig’s pm se status, I find him deserving of relief.
While the discussion in Part I disposes of the issue before us, the recurring nature of
the problems illustrated by this case calls for further comment.
II. OSHA Instructions as a Potential Source of Confusion
The potential for the instructions on OSHA’s internally-developed citation and
notification of penalty form to cause confusion was addressed by the Fifth Circuit in Brennan
v. OSHRC (Bill Echok Trucking Co.), 487 F.2d 230 (5th Cir. 1973) (“Echo&f’), one of the
earliest circuit court cases decided under the OSH Act, in which the court suggested the
following:
If each citation or notification of proposed penalty sent to an employer were
accompanied by a reply form on which the employer could check boxes
indicating intent to contest the citation or proposed penalty, or neither or both
no confusion need ever again arise on the part of either the Secretary or
ie’ Commission.

487 F.2d at 234 n.7. See also Marshall v. Haugan, 586 F.2d 1263 (8th Cir. 1978), which
favorably quotes the language of the Echok court. Id. at 1266 n.2. Like Echo& the case ”
now before us arises in the Fifth Circuit.13
I requested the cover letter sent from Mr. Reina to “Craig’s Mechanical.” It is a
cordial letter which ends with, “If conditions warrant, we can enter into an informal

‘these two United States Courts of Appeals have thus recommended that OSHA include
with its citation and notification of penalty form a separate form that can be easily filled out
by the employer and returned to the agency if the employer wishes to contest any aspect of
the citations or proposed penalty.
Another agency acting under a similar statutory scheme to that of OSHA, the Mine
Safety and Health Administration, has provided for many years what it calls “Blue Card”
Notices of Contest along with its citations.
 12

settlement agreement which amicably resolves this matter without litigation or contest.” me
letterhead provides the area director’s telephone
a
number, and the third sentence of the
three-sentence first paragraph invites clarification by OSHA personnel: “If you have any
questions about the enclosed citations and penalties, I would welcome further discussion in
person or by telephone.”
As I see it, the issue is not the one raised by my colleagues, whether most laymen
unfamiliar with OSHA procedures would necessarily have determined the notice of contest
requirements solely from a careful reading of the citation and notification of penalty page
sent to Craig.14 Rather, it is what duty OSHA owes to employers who are not legally
trained when they clearly reveal to OSHA that they do not understand OSHA’s written
instructions and that they need verbal clarification. They should not be given misleading
advice by the Government agency from which they are requesting clarification. Such
employers have the right to have their questions answered in a straightforward manner. A
second issue is whether the employer should be the one that suffers the adverse
consequences when OSHA fails to carry out its duty.
The 1984 version of the OSHA citation and notification of penalty form sent to
Craig” incorporated the 1%working-day filing deadline for a notice of contest (with other
information) in two blocks of fine print on its face, one just above the middle of the page,
and the other in horizontal words marching vertically down the side. The requirement that
the notice be in writing is mentioned on3) within the block in the middle of the page. Many

14Essentially, the view here is that if employers only take the time to read what government
lawyers have written often enough and hard enough, the employers will understand its
meaning. This attitude makes light of the real resource costs of employers.

“The Citation and Notification of Penalty Form (OSHA-2) used by the Secretary in this case
was last revised in 1984. Like all the forms sent to employers during the OSHA compliance
process, it was internally developed by OSHA officials. None of these forms is assessed for
clarity by the OSHA community by notice and comment rulemaking or even by the White
House Office of Management and Budget, which generally oversees agency rulemaking.
Indeed, in October 1993 the White House Office of Management and Budget announced
that henceforward it will review only agency regulations that represent an annual cost to the
U.S. economy of $100 million or more. 23 BNA OSHR 655 (October 27, 1993).
 13

employers overlook these requirements, and thus generate a great deal of litigation for the ’
Commission and its admi.&trative law judges on the issue of whether circumstances exist
that justify the Commission’s accepting a late-filed notice of contest. When employers fail
to understand the requirement to file a timely notice of contest in writing, they deprive
themselves of their statutory right to a hearing before the Commission. Perhaps one clear
statement in bold letters on OSHA’s citation cover page would be preferable.
OSHA revised its citation and notification of penalty form in June 1993. The revised
citation format mentions the U-day deadline for a written notice of contest in several places
and contains a separate paragraph titled “RIGHT TO CONTEST” in which the pertinent
information is in boldface type and underlined. However, that paragraph is relegated to
page 2 of three cover pages, and the critical phrase “in writing” does not stand out. I will
reserve judgment on whether the new larger-print, but longer, form constitutes an
improvement that will serve to stem the tide of late notice of contest problems. Even if it
does prove helpful for employers being cited today, it arrived too late to benefit Craig in this
case.
The problem of late-filed contests arises when a pro se employer, or a lawyer
inexperienced with OSHA issues, requests an informal conference with OSHA
representatives--without at the same time filing a notice of contest. The unwary party has

usually requested such a conference to seek a reduction in the penalty without understanding
that, should the OSHA conference not result in adequate relief, only the timely filing of a
written notice of contest will preserve its rights.
OSHA elaborates on this procedure in its “red booklet” entitled Employer Rights &
ResponsibilitiesFollowing an OSHA Inspection (OSHA 3000, revised in MO), which it
supposedly sends to all employers along with its citations. The hearing testimony is unclear
as to whether Craig received this booklet. Continuing litigation over the informal conference
request now leads me to disagree with the Commission’s 1991 statement in lyeefe Earth
Boring Co., 14 BNA OSHC 2187, 2192, 1991-93 CCH OSHD ll 29,277, p. 39,270 (No. 8%
2521, 1991), that “OSHA’s booklet accompanying the citations provide[s] additional,
straightforward explanations” about the informal conference request. In my opinion,
 14

OSHA’s red booklet could confuse anyone unfamiliar with OSHA procedures who requests
such conferences to contest only the penalties. An examination of the booklet shows that
it does not make the requirement to timely file a written notice of contest sufficiently clear.
me proof of this proposition is that the problem has persisted over the years, as shown by
the list of cases cited by the majority.
Indeed, the booklet’s statement on page 6, that before deciding whether to pay the
penalty or file a notice of contest the employer may request a conference with OSHA, could
mislead an employer to conclude that a conference request alone will preserve the
employer’s rights. Only later, on page 9, is it made clear that a request for an informal
conference does not extend the time to respond in writing with a notice of contest--or
replace this requirement. One clear statement of the method for asking for a penalty-
reduction conference would be preferable to two somewhat contradictory ones.
Furthermore, problems such as Craig’s are not addressed by OSHA’s current Field
Operations Manual (FOM), OSHA’s internally prepared handbook for its employees.
Although Chapter XV(B)(l)(d) tells OSHA officials to deal with a written communication
from an employer by contacting the employer as soon as possible to clarify whether the
communication constitutes a notice of contest, the FOM is silent regarding verbal
communications. Until recently, the Commission might have recognized an oral notice of
contest in a situation such as Craig’s, See Acrom Construction Services, Inc., 15 BNA OSHC
1123, 1991-93 CCH OSHD ll 29,393 (No. 88-2291, 1991). And to this date, California, a
state-plan state whose economy ranks eighth largest when compared to countries of the
world, accepts oral riotices of contest. These discrepancies emphasize the importance of
returning phone calls from employers and employees.
My review of OSHA’s Field OperationsManual leaves no doubt that an underlying
policy discouraging contests pervades standard operating procedures from inspection through
settlement to the attainment of an enforceable final order. I am not persuaded that a policy
actively promoting infomed decisions by employers would necessarily result in more
needless, “protective” appeals or fewer settlements. Such a policy might in the long run
cultivate a measure of good will in the business community.
 15

     OSHA is in the process of revising its Field OperationsManual as part of OS&Q

effort to reinvent itself. 23 BNA OSHR 1329 (March 9, 1994). Noting that OSHA’s new
citation and notification of penalty form provides employers with the area director’s phone
number, as did the cover letter to Craig Mechanical in this case, I would certainly hope that
the new manual instructs all OSHA personnel to tell any employer who calls, for whatever
reason, that a w&en notice of contest is still required before the 15.working-day filing

deadline.

                                                     Commissioner

Dated: May 18, 1994