SECRETARY OF LABOR,

Complainant,

v.

ALL PHASE ELECTRIC & MAINTENANCE, INC.,

Respondent.

OSHRC Docket No. 90-0505

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner.[[1]]

BY THE COMMISSION:

Before us on review is an order of Administrative Law Judge Edwin G. Salyers granting the Secretary's motion to dismiss a written notice of contest of Respondent, All Phase Electric & Maintenance, Inc. "All Phase"), as untimely filed. All Phase seeks relief from the judge's order, alleging that it miscalculated the final day for filing a timely notice of contest under the fifteen-working-day period provided in 29 C.F.R. § 1903.21(c). We conclude that even if this alleged miscalculation constituted a "mistake" or "excusable neglect" within the meaning of Rule 60(b) of the Federal Rules of Civil Procedure, All Phase would still not be entitled to relief under the rule because it did not contest the citation in its letter of January 11, 1990 to Occupational Safety and Health Administration (OSHA) Area Director Lawrence Falck. For the reasons set forth below, we affirm the judge's disposition of the case.

Factual Background and Chronology

In October 1989, OSHA conducted an inspection of a worksite in Brandon, Florida, where All Phase, a Tampa-based firm, was engaged in work as an electrical contractor. As a result of that inspection, OSHA issued two citations to All Phase, alleging serious violations of the electrical standards published at 29 C.F.R. §§ 1926.404 (b) (1) (i) and 1926.405 (a) (2) (ii) (E), and one other-than-serious violation of the OSHA poster regulation, published at 29 C.F.R. § 1903.2(a)(1). The total proposed penalty was $240.

All Phase's president, Paul Puleo, who has represented All Phase pro se throughout these proceedings, acknowledged that he personally "accepted delivery of the citations on December 18, 1989," which was a Monday. Under section 10(a) of the Act, 29 U.S.C. § 659(a), All Phase had fifteen working days to file its notice of contest. In keeping with the Secretary's published guidelines regarding the computation of time at 29 C.F.R. § 1903.21(c), All Phase's filing period did not include four weekend days and two Federal holidays -- Christmas on Monday, December 25, and New Year's Day on Monday, January 1. Thus, All Phase had until Tuesday, January 10, 1990 to file its notice of contest.

It is undisputed that All Phase did not contest the citation during this fifteen-working-day period. Accordingly, the citations became final orders of the Commission by operation of law on January 10, 1990. The next day, on January 11, 1990, All Phase's president Puleo made a telephone call to the OSHA area office in Tampa. The Secretary does not recount the details of this telephone conversation. In a letter to Area Director Falck dated the same day, Puleo stated:

I respectfully request an informal conference on the enclosed citation. Because of the numerous Holidays in the last 3 weeks, my 15 day count did not coincide with your office's 15 day count (we differed by 1 day). Accordingly my original verbal request was rudely denied by your office. Therefore, I would appreciate your reconsideration for an informal conference.

In a letter dated January 24, Area Director Falck responded by informing Puleo that the citations had become a final order on January 10, 1990, and that both the written "request for an informal conference received on January 16" and the earlier "verbal request [which] was received one day after the citation became a final order" were untimely. Falck informed Puleo that, if he disagreed with this decision, he could file a written appeal with the Commission's Executive Secretary.

On February 1, Puleo wrote to the Commission's Executive Secretary, stating in pertinent part:

Please be advised this letter is an appeal to the decision rendered in the enclosed letter from Mr. Falck, Area Director. With the confusion of the Christmas Holidays the 15 day count was off by 1 day and my verbal request to contest the citation was denied. Also my written appeal to Mr. Falck explaining the unique circumstances was rejected.

. . . . I firmly believe our Company is being singled out by the Tampa OSHA Office and unfairly cited, rudely communicated with and excessively fined.

After the case was docketed with the Commission, the Secretary filed a motion to dismiss in which the Secretary treats Puleo's February 1 letter as All Phase's notice of contest and seeks dismissal of the notice of contest on the ground that it was untimely filed. In support of this motion, the Secretary subsequently filed the affidavit of Area Director Falck and a copy of the informational booklet routinely supplied by the OSHA area office to employers informing them of the procedures for contesting citations. Area Director Falck's affidavit states: "I caused a search to be made of the official record in this case and found that no notice of contest was filed with or through this office by this employer with respect to the above Citations and Notifications of Penalty until February 1, 1990, approximately 45 days after receipt of the Citations and Notifications of Penalty by the respondent."

After receiving a letter dated March 23, 1990 from Judge Salyers informing All Phase that its notice of contest might be dismissed, All Phase responded to the Secretary's motion in an April 3, 1990 letter from Puleo to the judge. In this letter, Puleo indicated that the citations had arrived at a hectic time when All Phase's entire management team was away from the office of an annual management retreat and its employees were working "shortened work week[s]", including the week before the Christmas holidays, which was the week the citation arrived. Puleo also expanded on his earlier claim about miscalculating the end of the fifteen- working-day contest period: "All Phase Electric had counted the days on the calendar, with all good intentions; however, the count was off by just one day because we thought the governmental offices had more days off for the holidays." The letter also contains a statement that could be construed as a claim that the violations in question were due to unpreventable employee misconduct: "[Trying to make a better workplace for my employees] is very difficult to do at times, especially when the employees themselves are not attempting to follow the regulations as set forth by OSHA and All Phase Electric."

After considering the Secretary's motion and the employer's response, Judge Salyers entered his order granting the motion. Although he treated All Phase's first letter (dated January 11) as its notice of contest, he found that it was not filed within the statutory time limit. He further found that nothing in the Respondent's April 3 letter "would afford respondent relief from the late filing under Rule 60 of the Federal Rules of Civil Procedure," citing Roy Kay, Inc., 13 BNA OSHC 2021, 1989 CCH OSHD ¶ 28,406 (No. 88-1748, 1989), and Louisiana Pacific Corp., 13 BNA OSHC 2020, 1989 CCH OSHD ¶ 28,409 (No. 86-1266, 1989).

Analysis

The direction for review in this case raises the question of whether the Respondent's miscalculation of the final day for filing a notice of contest should be classified as a "mistake" or "excusable neglect" within the meaning of Rule 60 (b) of the Federal Rules of Civil Procedure. However, we need not reach the issue of whether this lateness was excusable because we conclude that All Phase did not file a notice of contest. In its January 11, 1990 letter to the Secretary, Respondent did not express an intent to contest the citations; rather, in that letter, Respondent simply requested an informal conference. We also note that Puleo's January 11, 1990 telephone call to the area office was not a notice of contest. In a letter written three weeks after the citation became a final order, Puleo described that telephone call as "a verbal request to contest the citation." However, the Commission has held that an oral notice of contest is not a sufficient means of contesting a citation, even if it was made within the fifteen-working-day period. Acrom Construction Services, Inc., 15 BNA OSHC 1123, 1991 CCH OSHD ¶ 29,393 (No. 88-2291, 1991).

Accordingly, we conclude that All Phase failed to timely contest the citations in this case, and we affirm the order of the administrative law judge granting the Secretary's motion to dismiss.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: October 4, 1991

SECRETARY OF LABOR,

Complainant,

v.

ALL PHASE ELECTRIC &

MAINTENANCE, INC.,

Respondent.

OSHRC Docket No. 90-0505

ORDER GRANTING MOTION TO
DISMISS NOTICE OF CONTEST

This matter is before the undersigned upon the Secretary's Motion to Dismiss Notice of Contest as untimely filed and supported by an affidavit of the Area Director.

The Occupational Safety and Health Act (29 U. S. C. § 651, et seq.) specifies in section 10 that a notice of contest not filed with the Secretary within fifteen (15) working days "shall be deemed a final order of the Commission and not subject to review of any court or agency."

It appears in the record that the citation and notification of penalty in this matter was issued by the Area Director on December 13, 1989, and was received by respondent on December 18, 1989. Respondent's notification of intent to contest dated January 11, 1990, was received in the Area Director's office on January 16, 1990. Accordingly, respondent's notice of contest was not filed within the period specified in the statute.

Upon receipt of the Secretary's motion, this court directed a letter to Mr. Paul Puleo, president of respondent corporation, dated March 23, 1990, requesting to be advised of any reasons why this motion should not be granted (Ex. J-12). The court has now received a letter from respondent dated April 3, 1990 (Ex. J-13), and has considered its contents. In essence, nothing contained therein would afford respondent relief from the late filing under Rule 60 of the Federal Rules of Civil Procedure.

The circumstances of this case are controlled by Roy Kay, Inc., 13 BNA OSHC 2021, 1989 CCH OSHD ¶ 28,406 (No. 88-1748, 1989), and Louisiana Pacific Corp., 13 BNA OSHC 2020, 1989 CCH OSHD 28,409 (No. 86-1266, 1989). Accordingly, the Secretary's motion is granted, respondent's notice of contest is dismissed, and the Secretary's citation has become a final order of the Review Commission by operation of law.

Dated this 24th day of May, 1990.

EDWIN G. SALYERS
Judge

FOOTNOTES:

[[1]] Commissioner Montoya did not participate in the deliberation or issuance of this decision.