Bedlam Brass Corporation

Plain-English summary

Bedlam Brass received OSHA citations on July 22, 1996, and had until August 12 to file a notice of contest. Its August 22 letter listed repairs the company had made but did not say that it contested the citations or penalties. The judge found that the citation and accompanying booklet clearly explained the deadline and that OSHA had not misled the company. Completing abatement did not substitute for filing a contest. The late challenge was dismissed, and the citations and penalties were affirmed in all respects.

Decision snapshot

• Cited standard(s): None identified in this late-contest decision.
• Outcome: The motion to dismiss was granted, leaving the citations and proposed penalties final.
• Key point: A letter reporting corrected conditions is not a notice of contest unless it communicates an intent to challenge the citations or penalties.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                          :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 96-1523
:
BEDLAM BRASS CORPORATION, :
:
Respondent. :
:
:

Appearances:
Susan B. Jacobs, Esq. Mr. Dick Grabowsky, Pres.
U.S. Department of Labor Bedlam Brass Corporation

           For the Complainant                    For the Respondent

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

   This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970,

29 U.S.C. sec. 651-678 (the Act) to determine whether the Respondent Bedlam Brass Corporation

(Bedlam) filed a timely notice of contest of the citations and penalty proposed by the Secretary for

alleged violations of the Act. A hearing was held on the Secretary's motion to dismiss the

Respondent's notice of contest. Both parties filed a post hearing brief.

                                     BACKGROUND

   The citations setting forth the alleged violations and the accompanying notification of

proposed penalty was issued by certified mail on July 18, 1996 and received by Bedlam on July 22,
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1996. Pursuant to section 10(a) of the Act, 29 U.S.C., sec. 659(a), Bedlam was required to notify

the Secretary of any intent to contest within 15 working days of receipt of the citations and

notification of proposed penalties, or August 12, 1996. In the absence of a timely contest, the citation

and proposed penalties would be deemed a final judgment of the Commission by operation of law.

Sec. 10(a) of the act. In a letter dated August 22, 1996 and received by the OSHA regional office on

August 23, 1996 the Respondent listed the compliance repairs it had made, and even in this letter did

not state it was filing a contest to either the citations or penalties.

                                         DISCUSSION

    The record plainly shows that Bedlam did not file a notice of contest as to the citations and

proposed penalties within the 15 day working period. His letter which, which in any event was out

of the filing period merely called attention to his compliance efforts. Bedlam apparently was of the

impression that making the necessary cure of the violations would be sufficient. An otherwise

untimely notice of contest may be accepted where the delay in filing was caused by deception on the

part of the Secretary to follow proper procedures. An employer is entitled to relief under Fed. R. Civ.

Proc. 60(b)(1) if it demonstrates that the Commissions' final order was entered as a result of

``mistake, inadvertence, surprise, or excusable neglect'' or under Rule 60(b)(6) for such mitigating

circumstances as absence, illness, or a disability which prevents a party from protecting his interests.

See Branciforte Builders, Inc., 9 BNA OSHC 2113, 1981 CCH OSHD, par. 25,591(No. 80-

1920,1981). Here, there is no showing that the Secretary acted improperly or that the factors

mentioned in Rule 60(b)(6) are present. The citation was not ambiguous. It admonishes that the 15-

day deadline for contesting violations and/or penalties is critical. Under a paragraph titled ``Right to

Contest'' is the statement that ``Unless you inform the Area Director in writing that you intend to
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contest the citations(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.''Moreover, the form

begins by the warning that ``You must abate the violations referred to in this Citation by the dates

listed and pay the penalties proposed, unless within fifteen working days (excluding weekends and

Federal holidays) from your receipt of this Citation and Notification of Penalty you mail a notice of

contest to the U.S. Department of Labor Area Office at the address shown above.'' The OSHA 3000

booklet which accompanied the citations similarly echoed this advice. Bedlam had clear and ample

notice of the need to contest within 15 working days. Its president, Mr. Grabowsky is responsible for

failure to carefully read and act upon the unambiguous instructions accompanying the citations.

Acrom Construction Servs., Inc. 15 BNA OSHC 1123. Simple negligence will not provide entitlement

to relief. E.K.Construction Co., 15 BNA OSHC 1165-6.

     While I am sympathetic to the Respondent's plight, I have no alternative but to hold it

responsible for failing to file in a timely manner. Its mistake was neither excusable nor justified by any

misconduct or misleading on the part of the Secretary.

                                            ORDER

    The Secretary's motion to dismiss is granted, and the citations and notification of penalties

is AFFIRMED in all respects.

                                                     IRVING SOMMER
                                                     Chief Judge.