Northern Energy, Inc.

Plain-English summary

Northern Energy received an OSHA citation on December 12, 1996, and had until January 6, 1997, to contest it. The company sent its contest letter on January 8 after the official responsible for OSHA matters returned from a scheduled vacation. The judge found no improper conduct by OSHA and no illness, disability, or other circumstance supporting relief. A corporation was expected to maintain reliable mail procedures while an employee was away, so the delay was ordinary negligence. The contest was dismissed, and the citation and proposed penalty were affirmed.

Decision snapshot

• Cited standard(s): None identified in this late-contest decision.
• Outcome: The late notice of contest was dismissed, leaving the citation and proposed penalty final.
• Key point: A vacation does not excuse a late OSHA contest when the company lacks backup procedures for handling important mail.

Full text (OSHRC public release)

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                       UNITED STATES OF AMERICA
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                             :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 97-0180
:
NORTHERN ENERGY, INC., :
:
Respondent. :
:
:

                                  DECISION AND ORDER
      The Secretary has filed a motion to dismiss the untimely notice of contest filed by the

Respondent herein. There was no response to the motion.
BACKGROUND
The citation setting forth the alleged violation and the accompanying notification of proposed
penalty was issued by certified mail on December 11, 1996 and received by the Respondent on
December 12, 1996. Pursuant to section 10(a) of the Act, 29 U.S.C.,sec. 659(a), the Respondent
was required to notify the Secretary of any intent to contest within 15 working days of receipt of the
citation and notification of proposed penalty, or January 6, 1997. In the absence of a timely contest,
the citation and proposed penalty would be deemed a final judgment of the Commission by operation
of law. Section 10(a) of the Act. In a letter dated January 8, 1997 addressed to the OSHA office in
Billings, Montana the Respondent stated, In response to the Citation and Notification of Penalty issuance date 12/11/96 we would like to exercise ourRight to Contest'' as prescribed in OSHA
3000.''
DISCUSSION
The record plainly shows that the Respondent did not file a notice of contest within the 15
day working period. A letter from his attorney dated January 24, 1997 states that the citation was
received in the “mailroom of Heritage Propane (the mother company)'' and due to the ``holiday
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season and a long scheduled vacation, Mr. Jerry W. Lucas, the appropriate corporate official to
contest the citation, was unable to act on the citation until his return to work on January 8, 1997.''
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 Commission's 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 6o(b)(6) are present. Here, the citation was delivered to the address
given to the OSHA compliance officer doing the inspection and were in fact delivered to such
corporate address, where the mail is distributed. Actually, said citation was delivered apparently to
the individual who handles such OSHA matters but who was on vacation and it was held for his
return. What is shown herein is that the Respondent had not provided a system to be in effect to
monitor and take care of important business mail while one of its employees was on vacation. What
is indicated here in neglect and poor business practice. The Respondent is a going corporate activity
with other clerical and technical staff personnel. It was incumbent upon the Respondent to maintain
orderly procedures for handling important mail. The Commission has held that employers whose
improper business procedures has led to failure to file in a timely manner are not entitled to relief. See
Louisiana-Pacific Corp., 13 BNA OSHC 20920; Stroudsburg Dyeing & Finishing Co.,13 BNA
2058. The office procedures of the Respondent corporation, a going business should provide for
reliable, continuous mail scrutiny so that important governmental documents are not acted upon while
one man is on vacation. Simple negligence will not provide entitlement to relief. E.K. Construction
Co., 15 BNA OSHC 1165-6.
The Respondent had clear notice of the need to contest within the 15 working day period, and
it is responsible for its failure to act promptly on its governmental mail. The circumstances here are
insufficient to etablish entitlement to relief under Rule 60(b).
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                                       ORDER
  The Secretary's motion to dismiss is granted, and the citation and notification of proposed

penalty is AFFIRMED.

                                               IRVING SOMMER
                                               Chief Judge

DATED:
Washington, D.C.