M.B. Construction Company

Plain-English summary

OSHA issued M.B. Construction a serious citation with ten items after inspecting a construction site. The company received the citation in July 1995 but did not file its notice of contest until May 1996, nine months after the statutory deadline. The judge rejected the company's claim that OSHA cited the wrong business because its manager had identified himself in an affidavit as M.B. Construction's manager and bookkeeper. Relief for excusable neglect or misconduct was also denied because the manager did not carefully read the contest instructions and could have called OSHA to resolve his confusion. The late contest was dismissed, leaving the citation and penalties affirmed in all respects.

Decision snapshot

• Cited standard(s): None identified in this late-contest decision.
• Outcome: The Secretary's motion to dismiss was granted, and the citation and penalties became final.
• Key point: Confusion about an abatement date did not excuse a late contest when the employer failed to read clear filing instructions or contact OSHA.

Full text (OSHRC public release)

                            United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                       1120 20th Street, N.W., Ninth Floor
                          Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 96-1092
:
M.B. CONSTRUCTION COMPANY, :
:
Respondent. :

APPEARANCES:

            Sabina Rezza                             Matthew R. Newborn, Esquire
            New York, New York                       New York, New York
            For the Complainant.                     For the Respondent.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a construction work site of Respondent in Brooklyn, New York, on May 16, 1995, resulting in the
issuance of a serious citation with ten items on June 2, 1995. Respondent filed a notice of contest
on May 10, 1996, which the Secretary moved to dismiss as untimely, and a hearing was held on
December 5, 1996, for the purpose of addressing the Secretary’s motion to dismiss.1 Both of the
parties have filed post-hearing briefs in this matter.

    1
     The undersigned heard another case on December 5, 1996, captioned M.B. Waterproofing,

Inc., No. 96-1093; that case involved the same company principals and the same issue but a different
OSHA inspection. A decision in that case is also being issued on this date.
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                                         Background
    The citation in this case was issued on June 2, 1995, and was mailed to Respondent on the

same day by certified mail, return receipt requested. When the return receipt card was not received
OSHA called the company on July 20, 1995, to make sure it had the right address and then faxed the
citation and also remailed it to the company that same day; the mailing was again by certified mail,
return receipt requested, and the company received the citation on July 21, 1995. Respondent failed
to file a notice of contest within fifteen working days of its receipt of the citation, as required by
section 10(a) of the Act, resulting in the citation becoming a final order of the Commission on August
11, 1995, and on September 14, 1995, OSHA sent the company a demand letter with respect to the
penalties and interest owed. On May 10, 1996, the company filed a notice of contest, noting it had
just recently retained counsel and was requesting relief on the grounds that it had not been able
previously to represent itself effectively. The Secretary filed a motion to dismiss the notice of contest
as untimely, contending there was no basis for granting relief pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure. The company’s response, in the form of an affidavit, was that it had been
misled by the late receipt of the citation and the fact that the abatement date on the citation was July
20, 1995, the day before it had received the citation. Before reaching the Rule 60(b) question,
however, the following preliminary issue will be addressed.
Whether OSHA Cited the Wrong Company
Sanjay Shah, the company’s manager and bookkeeper and the only individual to appear on
behalf of Respondent at the hearing, testified that the company’s name was M.B. Waterproofing and
that it had never been known as M.B. Construction. (Tr. 32-33; 36-37). Based on this testimony and
Respondent’s statement in its brief that the company was “incorrectly named,” Respondent is
evidently contending OSHA cited the wrong company. However, in the above-noted affidavit, Sanjay
Shah, the affiant, specifically identified himself as the manager and bookkeeper of M.B. Construction
Company and Masood Bhutta as the president of that company, and at the hearing Shah conceded
he had signed the affidavit and sworn to its contents. (Tr. 41). Moreover, Robert Stewart, the
OSHA compliance officer (“CO”) who conducted the inspection, testified an individual named
Mohamed Uddin identified himself as the foreman and the person in charge at the site. Stewart
further testified he saw a sign on the job with the name M.B. Waterproofing on it but that when he
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started to write down that name Uddin stopped him, saying the correct name was M.B. Construction;
Stewart also interviewed employees at the site who told him they worked for Uddin and that his
company was M.B. without specifying the rest of the name. Stewart called the company on May 17
and spoke with Shah, repeating the business name he had been given, and Shah acknowledged there
was a job at the site. On May 18, Masood Bhutta called the CO and said that M.B. Construction was
not his business and that he had no job at that site, to which Stewart replied that he had spoken with
the foreman and workers on the job, and with Shah, and that it was up to Bhutta to establish he did
not have a job there. (Tr. 4-5; 13-16; 19-20). In view of the record, I find no basis for concluding
OSHA cited the wrong company, and to the extent that this is Respondent’s contention it is rejected.
Whether Respondent is Entitled to Rule 60(b) Relief
The record here plainly shows that Respondent did not file a notification of its intent to
contest the citation until nine months after the expiration of the fifteen-day statutory period. The
issue in this case is whether the untimely filing may be excused under the circumstances. Rule 60(b)
provides for relief from a final judgment for various reasons, including mistake, inadvertence, surprise
or excusable neglect; fraud, misrepresentation or other misconduct; or any other reason justifying
relief. The moving party has the burden of showing it is entitled to Rule 60(b) relief, and ignorance
of procedural rules does not constitute excusable neglect for purposes of such relief. Roy Kay, Inc.,
13 BNA OSHC 2021, 2022 (No. 88-1748, 1989). Carelessness or negligence likewise does not
constitute excusable neglect, and an employer who does not carefully read the OSHA materials is not
entitled to relief. Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991); Jackson
Assoc., 16 BNA OSHC 1261, 1266 (No. 91-0438, 1993). Further, a party claiming misconduct on
the part of the Secretary must show clear and convincing evidence of material misrepresentations.
Jackson Assoc., 16 BNA OSHC 1261, 1267 n.10 (No. 91-0438, 1993).
The background portion of this decision sets out the undisputed facts of this case. Sanjay
Shah testified he received C-1, the citation and notification of penalty, on July 21, 1995, which was
almost two months after the issuance date, and that he noticed the abatement date of July 20, 1995,
which was confusing and deceiving to him as he could not understand how he could do something
by a date that had already passed; he further testified that although he looked at certain parts of C-1,
such as the inspection date and site and the citation items, his main concern was the penalties, which
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were highlighted, and he did not really read pages 1-4 of the package. Shah said that the only time
he spoke with OSHA was when the agency called to verify the address before remailing the citation
and that in his previous experience with OSHA he had had an informal conference; he also said that
after receiving C-4, the OSHA demand letter, the company obtained an attorney. (Tr. 34-40).
Based on the foregoing, Respondent has not shown that it is entitled to Rule 60(b) relief.
Shah’s own testimony establishes that he did not carefully read pages 1-4 of the citation package, and
the “Right to Contest” section set out on page 2 states in relevant part as follows:
If you decide to contest, please keep in mind that a written letter of intent to contest
must be submitted to the Area Director at the U.S. Department of Labor Area Office,
at the address above, within 15 working days (excluding weekends and Federal
Holidays) of your receipt of this citation. Unless you inform the Area Director in
writing that you intend to contest the citation(s) and/or proposed penalty(ies)
within 15 working days after receipt, the citation(s) and the proposed
penalty(ies) will become a final order of the Occupational Safety and Health
Review Commission and may not be reviewed by any court or agency.
This admonition is repeated in C-2, the “OSHA 3000” pamphlet enclosed with all citations
which fully explains the employer’s rights and responsibilities, and the Commission has noted the
sufficiency of the admonition in both the citation and the pamphlet. Roy Kay, Inc., 13 BNA 2021,
2022 (No. 88-1748, 1989); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521,
1991). In addition, Shah’s prior experience with OSHA is detailed in M.B. Waterproofing, Inc., No.
96-1093, which, as indicated above, was also heard on December 5, 1996, and is a companion case
to this matter. It is apparent from the record in No. 96-1093 that Shah called OSHA after receiving
the citations and had an informal phone conference on January 20, 1995, resulting in an informal
settlement agreement and a significant penalty reduction. In light of Shah’s experience with OSHA
six months before receiving the subject citation, Respondent’s contention that it could not effectively
represent itself in this matter is unpersuasive. The late receipt of the citation and the abatement date
may have confused Shah but hardly constitute misconduct on the part of the Secretary. Moreover,
a simple phone call to OSHA, like the one Shah made upon receiving the earlier citations, would have
resolved the matter, and the company’s failure to obtain legal counsel until nearly eight months after
the receipt of the OSHA demand letter renders its position even less tenable. On the basis of the
record and Commission precedent, Respondent’s failure to file a timely notice of contest in this case
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was due to its own negligence and not by excusable neglect or any misconduct on the part of the
Secretary. Acrom Constr. Serv., Inc., 15 BNA OSHC 1123, 1127 (No. 88-2291, 1991).
Respondent’s request for relief pursuant to Rule 60(b) is accordingly denied.
Order
The Secretary’s motion to dismiss is granted, and the citation and notification of penalty is
affirmed in all respects.

                                                   Irving Sommer
                                                   Chief Judge

Date: