United Sheet Metal, Inc. (ALJ decision, July 25, 1994)

Plain-English summary

United Sheet Metal received an OSHA citation in January 1994. Under the OSH Act, an employer has 15 working days after receiving a citation to file a notice of contest, which gave the company until mid-February. It filed late, and the Secretary moved to dismiss the contest as untimely. The company argued its late filing should be excused, believing that the Commission's docketing of the case had granted it a waiver to file late. Administrative Law Judge Irving Sommer rejected that, explaining that docketing only lets the parties present their positions and does not extend the deadline. Because the delay resulted from the company's own negligence and not from any deception or procedural failure by the Secretary, it did not qualify as excusable neglect under Rule 60(b). The judge granted the motion to dismiss and affirmed the citation, penalties, and abatement dates as issued.

Decision snapshot

• Cited standard(s): None; this order decides a timeliness question, not the merits of any safety standard.
• Outcome: Procedural. The notice of contest was dismissed as untimely and the citation, penalties, and abatement dates were affirmed as issued.
• Key point: The 15-working-day deadline to contest a citation is strict; a late filing caused by the employer's own mistake is not excusable neglect, and docketing of the case does not waive the deadline.

Full text (OSHRC public release)

  OCCUPATIONAL        SAF~~~~E~~~i~ciE”lEW                   COMMISSION

One Lafayette Centre
1120 20th Street, N.‘W. - 9th Floor
Washington, DC 200304419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. W-0833
UNITED SHEET METAL
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATKVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case w~llrs docketed with the Commission on June % 1994. The decision of the Judge will become a final order of the Commission on July 25,1994 unless a Commission member directs review of the decision on or before that b ANY - PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE - . COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REXIEW.
Any such etition should be received by the Executive Secre on or b&ore July 13 l&4 in order to ermit sufficient time for its review.% Commission Rule 91, 29 E .F.R. 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%l citor, U.S. DO5&
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review rights may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 23, 1994
Ray H. Darling, Jr.
Executive Secretary
DOCKETNO. 94-0833
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, E+
Cow& for Re bml Trial Iiti ation
Office of the So%‘CitOr, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Catherine Oliver Murphy
De uty Regional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

Jimmie Roberts, Jr., Safety/EEO
Officer
United Sheet Metal
9220 Ed eworth Drive
Capitol is eights, MD 20743

hin Sommer
Chie %Administrative Law Jud e
Occupational Safety and Heal 5l
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102899093:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
.
.
.
.
Complainant,
.
.
.
.
v. . l
Docket No.
94-0833
.
UNITED SHEET METAL, INC.,
I
.
.
.
.
Respondent.
.
.
..

               The Secretary                 has      moved to             dismiss the           Respondent'&

notice of contest as not being timely filed under Section 10 of the Act. The Respondent has filed a response in O#pOsitfOn to the Secretary's motion.

The record demonstrates that one citation was issued to the Respondent on January 14, 1884, and received on January 24, 1884.
Under Section 10(a) of the Act, 29 U.S.C.
659(a), an employer must notify the Secretary that it intends to
contest the citations or proposed penalties within f ifteen(l5)
working days of its receipt. The Respondent had until Febru&y 14 s 1994, to file its notice of contest, but did not do so, filing a letter dated February 24, 1984, and received by OSHA on
.
February 28, 1994.

               It is          clear that           the      Respondent did              not file a timely

notice of contest in this case.
The reasons given for said
failure to file a timely contest do not constitute *'excusable
neglect’ ’ under Rule 60(b) of the Federal Rules of Civil
Procedure. The Respondent admittedly did not file timely and
has mistakenly interpreted the docketing of the case by the
Commission’s Executive Secretary as granting it a "waiver" to file a late notice of contest in this matter. This interpretation is simply incorrect as the docketing of the case
merely allows the parties in the case to
file their positions
prior to the Judge's ruling on the matter. The late filing was due to Respondent's own negligence.

There is no evidence that the delay in filing was caused by " the Secretary's deception or failure to follow groper . .
procedures." Attanc Marine, IDC- K Om and ) 524 P2d
476 (5th Cir., 1975), nor is there any evidence that the Resgon-
dent is entitled to any relief under Rule 60 (b) of the Federal Rules of Civil Procedure.

Accordingly, the
motion to dismisa
Secretary’s
the
Respondent's notice of contest is GRANTED. IT IS FURTHER ORDERED
that the citation, penalties, and the abatement dates are
AFFIRMED as issued.

• /
  IRVING SOMMER
  Judge, OSHRC
  DATED: JUN 2 0 f9!M
  Washington, D.C.