William Rhodes Construction Co. and its successors

Plain-English summary

OSHA issued William Rhodes Construction two citations that explained the 15-working-day deadline for filing a notice of contest. The company did not contest within that period; its president later arranged installment payments, delivered a $1,000 check, and certified corrective action involving stair handrails, hard hats, and electrical cords. Months later he stopped payment and filed a contest, arguing that his brother was an independent subcontractor and that the workers were not company employees. The judge credited the compliance officer's account that the brother identified himself as the company's foreman, particularly in light of the president's payment arrangement and abatement certification. No evidence showed deception, procedural failure, excusable neglect, or another ground for relief from the statutory deadline. The late notice of contest was dismissed, and the citations and $3,850 penalty became final.

Decision snapshot

• Cited standard(s): The decision describes handrail, hard-hat, and electrical-cord conditions but does not identify the underlying OSHA standards by number.
• Outcome: Procedural. The untimely notice of contest was dismissed, and the citations and $3,850 penalty were affirmed.
• Key point: A company cannot revive an expired contest deadline merely by changing its position after arranging payment and certifying abatement; it must establish a recognized basis for relief such as excusable neglect.

Full text (OSHRC public release)

                                                                    |
SECRETARY OF LABOR,                                                 |
     Complainant,                                                   |
                                                                    |
          v.                                                        |
                                                                    |                     OSHRC DOCKET
WILLIAM RHODES CONSTRUCTION                                         |                     NO. 99-2028
  COMPANY and its successors,                                       |
     Respondent.                                                    |
                                                                    |


APPEARANCES:

                         Raquel Tamez, Esq., Office of the Solicitor, U.S. Department of Labor,
                          Dallas, Texas

                         William Rhodes, W. Rhodes Construction, Inc., Burleson, Texas


Before:          Administrative Law Judge Sidney J. Goldstein


                                           DECISION AND ORDER


          A compliance officer for the Occupational Safety and Health Administration inspected a
construction worksite, spoke with the general contractor, and John Rhodes who identified himself
as a foreman for the Respondent. As a result of this inspection, the Administration issued two
citations to the Respondent on February 26, 1999. The citations contained information to the effect
that the employer had 15 days from the receipt of the citations to file a notice of contest if it
disagreed with them. There was also an insert (OSHA Form 3000) reminding employers of their
rights and responsibilities following an OSHA inspection.
          The Respondent did not file a notice of contest within the time limitations. However, its
President, William Rhodes, appeared at the OSHA office on April 27, 1999, requested and received
permission to pay the penalties on a time basis. He also gave the OSHA office a check for
$1,000.00 as partial payment. On April 29, 1999 William Rhodes filed with OSHA a Certification
of Corrective Action Worksheet wherein he wrote that he made sure that hand rails are always
around stairs; that all people are wearing hard hats at all times; and that throw away and broken
electrical cords were replaced with new ones. Shortly thereafter Mr. William Rhodes stopped
payment of the $1,000.00 check and made no further payment. On October 28, 1999, Mr. Rhodes
filed a notice of contest, alleging that his brother John was not his foreman; that he had no
employees at the worksite; and that John was a subcontractor who employed the workers on the job.
        The Secretary filed a motion with this Commission to dismiss the Respondent's notice of
contest as untimely, and a hearing on the motion was held in Dallas, Texas.
        At the hearing the compliance officer testified that John Rhodes identified himself as the
Respondent's foreman and its representative at the inspection. At the hearing, however, he denied
the compliance officer's version of the events and testified that he was a subcontractor for the
Respondent; and that the workers at the jobsite were his employees. William Rhodes also testified
to the same effect.
        With this variance in the evidence I am placing more reliance upon the compliance officer's
version of the facts for the following reasons:
        1.      No citation was issued to John Rhodes;
        2.      William Rhodes came to the OSHA office on April 27, 1999 and requested
                permission to pay the penalty on a part payment basis;
        3.      William Rhodes presented the OSHA office with a check for $1,000.00;
        4.      William Rhodes certified that corrective action was taken as a result of the citation.

        I therefore conclude that the citation was properly addressed to the Respondent.
        The record discloses that Respondent did not file its notice of contest until well after the
15-day contest period 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 demonstrates that it failed to file a notice of contest within the statutory
15 days was 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 that
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 failed to follow proper procedures in this matter. Rather, Respondent is requesting, in
essence, that the late filing be excused under the circumstances.
        The Commission has held that the OSHA citation plainly states the requirement to file a

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notice of contest within the prescribed period and that ignorance of procedural rules, even on the
part of a layman, does not constitute "excusable neglect" for purposes of Rule 60(b), Roy Kay, Inc.,
13 BNA OSHC 2021,2022 (No. 88-1748, 1989). The Commission has also held that a business
must have orderly procedures for handling important documents and has denied Rule 60(b) relief
where the employer has asserted that the late filing was due to events such as changes in
management, misplacing the citation, or the absence of the person responsible for OSHA matters.
See Louisiana-Pacific Corp., 13 BNA OSHC 2020,2021 (No. 86-1266, 1989). 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." Roy Kay, Inc.,
13 BNA OSHC 2021,2022 (No. 88-1748, 1989).
       Based upon the record and commission precedent, I conclude that the untimely filing of the
notice of contest in this case was due to simple negligence and not to excusable neglect or "any other
reason justifying relief" pursuant to Rule 60(b). Accordingly, the Secretary's motion to dismiss the
notice of contest is GRANTED. The citations and penalty of $3,850.00 are therefore AFFIRMED.




                                                                      /s/

                                                              Sidney J. Goldstein
                                                              Judge, OSHRC

Dated: July 17, 2000




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