Yannuzzi, Inc.

Plain-English summary

OSHA issued Yannuzzi a serious citation after a May 1998 inspection, and the company received it on June 4, 1998. Its 15-working-day contest period expired on June 25, but its first written response was sent in August and its request for a late notice of contest did not reach the Commission until January 1999. Chief Judge Irving Sommer found no deception, procedural failure, excusable neglect, or other basis for relief from the missed deadline. The Secretary's motion was granted, the late notice was dismissed, and the citation and proposed penalty became final in all respects. The release does not identify the cited standards or penalty amount.

Decision snapshot

• Cited standard(s): Not identified in the official release.
• Outcome: Late notice of contest dismissed; citation and notification of penalty affirmed in all respects.
• Key point: An employer that misses the 15-working-day contest deadline must establish a recognized basis for relief, and disputing the citation's merits alone is insufficient.

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. 99-0237
:
YANNUZZI, INC., :
:
Respondent. :

APPEARANCES:

            Troy E. Leitzel, Esquire                         Dominic Yannuzzi
            Philadelphia, Pennsylvania                       Hazleton, Pennsylvania
            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”) conducted an inspection of
a work site of Respondent, located in Hazleton, Pennsylvania, on May 27, 1998. As a result of the
inspection, OSHA issued Respondent a citation and notification of penalty alleging serious violations
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 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 to Respondent by certified mail, that Respondent received the
citation on June 4, 1998, and that the 15-day notice of contest period expired on June 25, 1998. The
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record also shows that Respondent did not reply to the citation in writing until August 7, 1998, and
that it sent two additional letters to OSHA, one on October 16, 1998, and another on January 11,
1999.1 Finally, the record shows that on January 28, 1999, Respondent sent a letter to the
Commission stating that the citation was “without merit” and asking that its letter be considered a
“late notice of contest.” The Secretary filed her motion to dismiss Respondent’s notice of contest as
untimely on February 24, 1999.
Discussion
The record plainly shows that Respondent did not file its notice of contest until well after the
15-day contest period had already 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 that 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 case. There is also no evidence or contention
that the failure to file a timely notice of contest was due to excusable neglect or “any other reason
justifying relief,” and, for the reasons that follow, Rule 60(b) relief must be denied.
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, as follows:
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, as follows:
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

    1
        All three of these letters disputed the issuance of the citation and notification of penalty.

3

    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), noted supra, 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 when due to illness, of the person responsible for OSHA matters. See Louisiana-
Pacific Corp., 13 BNA 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).
As indicated above, all of Respondent’s correspondence in this matter disputes the issuance
of the citation and notification of penalty. However, none of that correspondence sets forth any basis
whatsoever for relief from the consequences of having filed an untimely notice of contest. Although
I have noted Respondent’s concerns, I am constrained by the circumstances in this case and the
foregoing Commission precedent to conclude that Respondent is not entitled to Rule 60(b) relief.
The Secretary’s motion to dismiss is consequently 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: