RBV, Inc., d/b/a R.B. Ventures

Plain-English summary

R.B. Ventures received an OSHA citation on November 18, 1998, making December 10 the contest deadline, but filed on December 14. The secretary-treasurer who normally handled all paperwork was hospitalized for cancer-related treatment from late November until December 13. Chief Judge Irving Sommer found that the company president knew of the citation and wanted to contest it but simply assumed his wife would handle it, without a backup procedure or explanation why he could not file himself. Although the business had closed and faced financial hardship, the judge held that the illness of the responsible employee did not establish excusable neglect under these circumstances. He dismissed the late contest and affirmed the citation and penalty.

Decision snapshot

• Cited standard(s): Not identified in the decision.
• Outcome: Late notice of contest dismissed; citation and penalty affirmed in all respects.
• Key point: Even a serious illness does not excuse a late OSHA contest when another informed company officer could act and the business lacks backup procedures for important documents.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 98-2078
:
RBV, INC., :
d/b/a R.B. VENTURES, :
:
Respondent. :

APPEARANCES:

              Suzanne F. Dunne, Esquire                     Roger E. Brackey
              Dallas, Texas                                 Danbury, Texas
              For the Complainant.                          For the Respondent, pro se.

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”), for the sole purpose of determining whether the Secretary’s motion to
dismiss Respondent’s notice of contest as untimely should be granted.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected Respondent’s
facility in Houston, Texas, in June of 1998. As a result of the inspection, OSHA issued Respondent
a citation and notification of penalty alleging a serious violation of the Act. Section 10(a) of the Act
requires an employer to notify OSHA of the intent to contest a citation within 15 days of receiving
it, and the employer’s failure to file a timely notice of contest results in the citation and penalty
becoming a final judgment of the Commission by operation of law. The record shows that OSHA
sent the citation by certified mail, that an officer of the company received the citation and signed for
it on November 18, 1998, and that the notice of contest period ended on December 10, 1998.1 The

    1
        Although the citation was issued on October 21, 1998, it was not delivered until November
                                                                                    (continued...)

2

record further shows that Respondent did not file a notice of contest until December 14, 1998, when
it sent a letter to the Commission that explained the circumstances surrounding the alleged violation
and the reason for the late filing of the notice of contest. The Secretary filed her motion to dismiss
Respondent’s notice of contest as untimely on January 26, 1999. The hearing in this matter was held
in Houston, Texas, on March 14, 1999.
Discussion
The record plainly shows that Respondent did not file its notice of contest until after the 15-
day contest period had ended. An otherwise untimely notice of contest may be accepted where the
Secretary’s deception or failure to follow proper procedures caused the delay in filing. An employer
is also entitled to relief if it shows the Commission’s final order was entered as a result of “mistake,
inadvertence, surprise, or excusable neglect” or “any other reason justifying relief,” including
mitigating circumstances such as absence, illness or a disability which would prevent a party from
protecting its interests. See Fed. R. Civ. P. 60(b); Branciforte Builders, Inc., 9 BNA OSHC 2113
(No. 80-1920, 1981). There is no evidence and no contention that the Secretary was deceptive or
failed to follow proper procedures in this matter. Rather, Respondent concedes its fault and, in
essence, requests that the late filing of the notice of contest be excused under the circumstances.
Roger Brackey, Respondent’s president, testified that he is in the business of buying fresh
shrimp and packaging and freezing it for sale to his customers. He further testified that his business
is small, that Judy Brackey, his wife, is the secretary and treasurer, and that they are the only two
officers of the company. Brackey said that his wife is responsible for billing, record keeping and all
other paperwork, including the receipt and handling of mail, that she advised him when she received
the citation, and that he told her he wanted to contest it. He also said that he had assumed she would
take care of it, even though this was the company’s first citation, because she is very competent, and
that the reason she had not was due to her having had to go into the hospital towards the end of
November 1998; he explained that she had had cancer for over a year, that her admission to the

    1
        (...continued)

18, 1998, because of the company’s change of address.
 3

hospital was related to that condition, and that she had not been released until December 13, 1998.2
Brackey noted that R.B. Ventures had been formed in 1990; he additionally noted that although he
had had 60 to 80 employees in 1997 and 1998 he had been forced to vacate his place of business in
the fall of 1998, resulting in his going out of business. (Tr. 13-21).
The citation issued to Respondent, and the cover letter accompanying it, explain the 15-day
contest period. The cover letter states, in the first paragraph on page 1, that:
You must abate the violations referred to in this Citation by the dates listed and pay
the penalties proposed, unless within 15 working days ... 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. Please refer to the
enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and
which should be read in conjunction with this form.
The cover letter also states, on page 2, the following:
Right to Contest - You have the right to contest this Citation and Notification of
Penalty. You may contest all citation items or only individual items. You may also
contest proposed penalties and/or abatement dates without contesting the underlying
violations. 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.
The Commission has held that the OSHA citation “plainly state(s) the requirement to file a
notice of contest within the prescribed time period.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No.
88-1748, 1989). The Commission has also held that Rule 60(b) cannot be invoked “to give relief to
a party who has chosen a course of action which in retrospect appears unfortunate or where error or
miscalculation is traceable really to a lack of care.” Id. Finally, the Commission has held that a
business must have orderly procedures for the handling of important documents and has denied Rule
60(b) relief where the employer asserted that the late filing was caused by events such as a change
in management, the improper handling of the citation by company personnel, and the absence, even
if due to illness, of the person responsible for OSHA matters. See Louisiana-Pacific Corp., 13 BNA

   2
       Judy Brackey’s notice of contest letter also sets out the circumstances of her hospitalization.

4

OSHC 2020, 2021 (No. 86-1266, 1989); J.F. Shea Co., 15 BNA OSHC 1092, 1094 (No. 89-976,
1991); E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No. 90-2460).
According to the testimony of Roger Brackey, the failure to file the notice of contest within
the required 15-day period was due to his wife’s hospitalization and consequent inability to attend
to this matter. However, the citation clearly gave notice of the filing requirement.3 Moreover, Roger
Brackey, the president of the company, was aware of the citation, and he testified that R.B. Ventures
was formed in 1990, that he had been in the seafood business since 1984, and that he had had 60 to
80 employees until going out of business in the fall of 1998. (Tr. 15-19). Finally, although his wife
was responsible for taking care of the company’s paperwork, Brackey should have had an office
procedure that would have ensured a timely response to the OSHA citation and that he did not does
not constitute excusable neglect within the meaning of Rule 60(b); in addition, the employer has the
burden of showing that Rule 60(b) relief is justified, and Brackey did not testify as to why he could
not have filed the notice of contest himself. See E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No.
90-2460). See also Jackson Assoc. of Nassau, 16 BNA OSHC 1261, 1265-66 (No. 91-0438, 1993).
I have noted the statements in Respondent’s notice of contest letter indicating the financial
and other difficulties the company has undergone, and I sympathize with Respondent’s plight in this
matter. Regardless, I am constrained by Commission precedent and the circumstances of this case
to conclude that Respondent is not entitled to Rule 60(b) relief. The Secretary’s motion to dismiss
is accordingly GRANTED, the notice of contest is DISMISSED, and the citation and notification
of penalty is AFFIRMED in all respects. So ORDERED.

                                                   Irving Sommer
                                                   Chief Judge

Date:

    3
      Besides the citation itself, I note the testimony of Juan Padron, the OSHA compliance

officer, that he held a closing conference with Roger and Judy Brackey after his inspection, at which
time he explained the violations he had found, the company’s right to contest the citation, and the
fact that the notice of contest had to be filed within 15 days after receipt of the citation. (Tr. 6-8).