1 

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

SECRETARY OF LABOR, 

Complainant,

v. OSHRC DOCKET NO. 19-0469 

GTA CO., INC., 

 Respondent. 

ORDER DISMISSING RESPONDENT’S

LATE NOTICE OF CONTEST

This matter is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (the Act). 

The Andover, Massachusetts Area Office of the Occupational Safety and Health 

Administration (OSHA) conducted an inspection of a Respondent GTA Co., Inc. (GTA) job site 

located at West Wyoming Street, Melrose, Massachusetts, on December 7, 2018. The designated 

OSHA inspection number is 1365141. Following this inspection, on January 11, 2019, OSHA 

issued to Respondent GTA a two-item serious citation, a one-item willful citation, and a 

notification of penalty (citation). Respondent GTA received the citation on January 15, 2019. 

Therefore, the 15-working day notice of contest filing period ended on February 6, 2019. 

Respondent mailed and faxed a late notice of contest letter, dated March 19, 2019, 

addressed to the Commission, in Washington, D.C. Respondent’s late notice of contest letters, 

sent by facsimile and mail, were received by the Commission on March 21 and 25, 2019, 

respectively. The Commission issued a notice of docketing in this case on March 29, 2019. 
2 

Complainant, the Secretary of Labor (Secretary), filed a Motion to dismiss Respondent’s 

late notice of contest, together with a supporting memorandum, declaration of OSHA Assistant 

Area Director (AAD) Sweeney with exhibits, and proposed order (Motion). In the Motion, the 

Secretary contends that Respondent failed to file a timely notice of contest, has not demonstrated 

grounds for relief pursuant to Federal Rule of Civil Procedure 60(b), and has not demonstrated a 

meritorious defense to the citation. The Motion requests that Respondent’s late notice of contest 

be dismissed, and that the willful citation, issued on January 11, 2019, and the $56,908.00 penalty 

proposed for the willful citation, be affirmed by operation of law as a final order of the 

Commission. 

An Order to show cause issued directing Respondent to file a written response to the 

Secretary’s Motion. In response, Respondent filed an Objection to the Secretary’s Motion, 

together with a supporting memorandum and declaration of Respondent GTA President Antonelli. 

Thereafter, the Secretary filed a Reply.1

 

For the reasons set forth below, the Secretary’s Motion is Granted.

ISSUES 

Was Respondent’s March 19, 2019 notice of contest untimely filed?

If Respondent’s notice of contest was untimely filed, may Respondent receive relief for the 

untimely filing under Federal Rule of Civil Procedure 60(b)? 

FINDINGS OF FACT 2

1 During a conference call on October 28, 2019, Counsel for the Secretary and Counsel for 

Respondent were advised that the Secretary’s assented to Motion for leave to file a Reply was

granted and that the Secretary’s Reply, attached to the Motion, was received. Respondent was 

offered an opportunity to respond to the Secretary’s Reply. Respondent Counsel stated that further 

response was not necessary. The relevant case facts are not disputed. 

2 The factual findings are based on Respondent’s March 19, 2019 late notice of contest, the 

Secretary’s Motion, Respondent’s Objection, and the Secretary’s Reply. Exhibits filed with the 

Secretary’s Motion and Declaration of AAD Sweeney include the January 11, 2019 citation in 

OSHA inspection # 1365141, excerpts from the OSHA 3000 Booklet, the signed certified mail 

return receipt and the USPS Tracking Report confirming Respondent’s receipt of the January 11, 

2019 citation on January 15, 2019, and the May 20, 2019 partial Informal Settlement Agreement 
3 

The OSHA Andover Area Office conducted an inspection of Respondent GTA’s job site 

located at West Wyoming Street, Melrose, Massachusetts, on December 7, 2018. The designated 

OSHA inspection number is 1365141. 

Shortly after the December 7, 2018 inspection, Respondent President Antonelli called 

OSHA AAD Sweeney to inquire about OSHA inspection # 1365141 and two other OSHA 

inspections. At the time of this conversation, no citation regarding OSHA inspection # 1365141 

had issued. AAD Sweeney told Respondent President Antonelli that once he received the citation, 

Mr. Antonelli could contact the OSHA Andover Area Office if he wanted to schedule an informal 

conference. See Sweeney Declaration ¶ 5; Motion p. 2; Objection p. 2. 

On January 11, 2019, OSHA issued to Respondent GTA a two-item serious citation, a oneitem willful citation, and a notification of penalty (citation). The citation alleged violations of 

OSHA construction standards regarding excavations. The total penalty proposed was $ 68,290.00. 

The total proposed penalty included a proposed penalty of $56,908.00 for the willful citation. See 

Sweeney Declaration ¶ 6, Exhibit A; Objection p. 2. 

Section 10(a) of the Act requires the employer to notify OSHA within fifteen working days 

of receiving the citation of its intent to contest the citation or proposed penalty. 29 U.S.C. § 659(a). 

See 29 C.F.R. § 1903.17(a). The citation advised Respondent of this requirement. The citation 

emphasized that unless Respondent informed OSHA in writing of its intention to contest the 

citation, within fifteen working days after receipt, the citation would become a final order of the 

Commission. 

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 

in OSHA Inspection # 1365141. Filed with Respondent’s Objection is the Declaration of GTA 

President Antonelli. 

In the show cause Order, Respondent was instructed to state whether it disagreed with any 

of the factual representations set forth in the Secretary’s Motion or in the show cause Order. Unless 

a factual disagreement is stated in Respondent’s Objection or in GTA President Antonelli’s 

Declaration, the representations of fact set forth in the Secretary’s Motion and in the show cause 

Order are regarded as uncontested. 

. 
4 

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. 

See Sweeney Declaration ¶ 9, Exhibit A, page 2 (emphasis in original).

On January 11, 2019, the citation was sent to Respondent by certified mail return receipt 

requested. The OSHA Andover Area Office mailed the citation to Respondent, together with a 

copy of the OSHA 3000 Employer Rights and Responsibilities Following a Federal OSHA 

Inspection Booklet (OHSA 3000 Booklet). See Sweeney Declaration ¶ 7, Exhibit B. The OSHA 

3000 Booklet provided information regarding the actions an Employer must take to timely submit 

a notice of contest after OSHA citations are received, including the following guidance. 

How to Contest Citations

If you wish to contest any portion of your citation, you must submit a Notice of Intent to 

Contest in writing to the OSHA area office within 15 working days after receipt of the 

Citation and Notification of Penalty. This applies even if you have stated your 

disagreement with a citation, penalty, or abatement date during a telephone conversation 

or an informal conference. 

See Sweeney Declaration Exhibit B, page no. 8 (emphasis supplied). 

The OSHA 3000 Booklet also provided information regarding an informal conference and 

settlement, including the following guidance. 

OSHA encourages you to take advantage of the opportunity to have an informal conference 

if you foresee any difficulties in complying with any part of the citation Please note, 

however, that an informal conference must be held within the 15-working-day Notice 

of Intent to Contest period and will neither extend the 15-working-day contest period 

nor take the place of the filing of a written notice if you desire to contest. 

See Sweeney Declaration Exhibit B, page no. 4 (emphasis in original). 

It is undisputed that Respondent GTA received the citation on January 15, 2019. See

Sweeney Declaration ¶ 10, Exhibits C, D. Therefore, the 15-working day notice of contest filing 

period ended on February 6, 2019. See Sweeney Declaration ¶ 11. 

It is undisputed that between January 15, 2019 when Respondent received the citation and 

February 6, 2019 when the notice of contest period ended, Respondent had no communication 

with AAD Sweeney or the OSHA Andover Area Office. See Sweeney Declaration ¶ 13; Motion 
5 

p. 4; Reply ¶ 4. Respondent GTA did not file a timely notice of contest on or before February 6, 

2019. See Sweeney Declaration ¶ 12. After receiving the citation, Respondent GTA did not 

request an informal conference on or before February 6, 2019. See Sweeney Declaration ¶ 12; 

Motion p. 4. 

It is undisputed that Respondent GTA did not make a timely penalty payment. On March 

11, 2019, the OSHA Andover Area Office mailed a debt collection letter to Respondent regarding 

inspection # 1365141. See Sweeney Declaration ¶ 14; Motion p. 4. 

It is undisputed that after receiving the citation on January 15, 2019, Respondent did not 

contact the OSHA Andover Area Office until March 18 or 19, 2019,

3 when Respondent President 

Antonelli called AAD Sweeney. AAD Sweeney advised Mr. Antonelli that the OSHA citations

issued regarding inspection # 1365141 and inspection # 1362185 had become final orders of the 

Commission as of February 6, 2019. AAD Sweeney further advised Mr. Antonelli that he would 

need to contact the Commission to provide a reason why Respondent did not respond to the 

citations during the 15-working day notice of contest period. AAD Sweeney also sent an email to 

Mr. Antonelli with the Commission’s address. See Sweeney Declaration ¶ 15; Motion pp. 4-5; 

Reply ¶ 5; Objection p. 3; Antonelli Declaration ¶¶ 3, 4; March 19, 2019 late notice of contest. 

Respondent mailed and faxed a late notice of contest letter, dated March 19, 2019, 

addressed to the Commission, in Washington, D.C. The late notice of contest letter was signed by 

Respondent President Antonelli. Respondent’s late notice of contest, sent by facsimile, was 

received by the Commission on March 21, 2019. 

The body of Respondent’s March 19, 2019 late notice of contest letter states: 

Re: Inspection Number(s): 1365141 and 13621854

 

3 AAD Sweeney recalls that Respondent President Antonelli contacted her regarding inspection 

#1365141, on March 19, 2019. See Sweeney Declaration ¶ 15; Motion p. 4; Reply ¶ 4. In the 

March 19, 2019 late notice of contest letter, Mr. Antonelli recalls contacting ADD Sweeney on 

March 18, 2019. 

 

4 Respondent’s late notice of contest references two OSHA inspection numbers 1365141 and 

1362185. 

Respondent’s late notice of contest regarding OSHA inspection # 1365141 was docketed 

with the Commission as OSHRC Docket no. 19-0469. This is the Respondent late notice of contest 
6 

Inspection Site: Melrose, MA

 To whomever it may concern: 

I received the following two (2) citations listed above in Melrose, MA. I have been and 

was in contact with Gail Sweeney from the Andover, MA OSHA office. I didn’t realize 

that the last day to contest the citations and penalties was on February 6, 2019. I contacted 

Gail on Monday, March 18, 2019 to try and set up a time with the Andover OSHA office 

to discuss and go over the citations that were issued. In speaking with Gail this past 

Monday, she informed me that the time period to contest the violations had expired. She 

told me that I would need to request an extension from the Washington Office. Please 

accept this letter as a request for a time extension on a hearing to contest the citations and 

penalties. I appreciate your anticipated cooperation to this matter. 

On March 20, 2019, Respondent provided a copy of the March 19, 2019 late notice of 

contest to AAD Sweeney. See Sweeney Declaration ¶ 16; Motion p. 5. 

On April 1, 2019, AAD Sweeney sent an email message to Respondent President Antonelli 

to schedule an informal conference in response to Respondent’s late notice of contest. On April 3, 

2019, AAD Sweeney left a voice mail message for Mr. Antonelli to schedule an informal 

conference. In April 2019, there were several additional communications between AAD Sweeney 

and Mr. Antonelli to schedule an informal conference. The parties agreed to a meeting scheduled 

for May 14, 2019. See Sweeney Declaration ¶¶ 17, 18; Reply ¶ 6; Antonelli Declaration ¶ 2. 

On May 14, 2019, Respondent President Antonelli attended a meeting with OSHA 

Andover Office Area Director (AD) Covello and AAD Sweeney. At the meeting, the participants

discussed the citations issued to Respondent in OSHA inspection # 1365141. They also discussed 

the citations issued in two other OSHA inspections.5

 Regarding the citations issued to Respondent 

in OSHA inspection # 1365141, Respondent President Antonelli agreed to accept serious citation 

before the undersigned Judge in this case. The Secretary’s Motion to dismiss in this case only 

concerns OSHA inspection # 1365141. 

Respondent’s late notice of contest regarding OSHA inspection # 1362185 was docketed 

with the Commission as OSHRC docket no. 19-0467. In that case, the parties submitted a full 

Informal Settlement Agreement, dated May 20, 2019. The Notice of Order and Report in OSHRC 

docket no. 19-0467 has become a final order of the Commission. 

5 At the May 14, 2019 meeting the participants also discussed two other OSHA inspections 

regarding GTA, OSHA inspection numbers 1362185 and 1246054. 
7 

1, items 1 and 2, with a reduced penalty. OSHA AD Covello advised Mr. Antonelli that OSHA 

would not reclassify willful citation 2, item 1. Mr. Antonelli would not accept the willful citation. 

The willful citation remained unresolved when the meeting ended. See Sweeney Declaration ¶ 18, 

Exhibit E; Motion p. 5; Reply ¶ 6; Antonelli Declaration ¶ 2; Objection p. 2. 

After the meeting AAD Sweeney prepared and sent to Respondent a partial Informal 

Settlement Agreement, regarding the citations issued in OSHA inspection # 1365141, reflecting 

the agreements reached by the parties during the May 14, 2019 meeting. The partial Informal 

Settlement Agreement resolved serious citation 1, items 1 and 2, with an agreed amended penalty. 

This partial Informal Settlement Agreement resolved Respondent’s late notice of contest regarding 

serious citation 1, items 1 and 2. Respondent agreed to waive its right to contest the citations and 

penalties regarding serious citation 1, items 1 and 2. The partial Informal Settlement Agreement 

did not resolve willful citation 2, item 1, or Respondent’s late notice of contest regarding willful 

citation 2.6

 See Sweeney Declaration ¶ 19; Exhibit E; Motion pp. 5-6, n.5; Objection p. 3. 

Respondent’s March 19, 2019 late notice of contest, as it concerns willful citation 2, item 

1, issued in OSHA inspection # 1365141, is the only outstanding citation and contest that remain 

before the undersigned Judge for decision in this case OSHRC docket no. 19-0469. 

ANALYSIS

6 A Joint Notification of Partial Settlement regarding OSHA inspection # 1365141 was filed, on 

November 4, 2019, reflecting the parties’ amicable resolution of serious citation 1, items 1 and 2, 

as set forth in the May 20, 2019 partial Informal Settlement Agreement. See Sweeney Declaration 

¶ 19; Exhibit E. The Joint Notification of Partial Settlement also reflects Respondent’s withdrawal 

of its late notice of contest regarding serious citation 1, items 1 and 2, in OSHA inspection 

#1365141. See Commission Rule 100(b). 

On November 5, 2019, an Order of Severance issued severing the resolved serious citation 

1, items 1 and 2, from the unresolved willful citation 2, item 1, in OSHA inspection # 1365141. 

The serious citations items will be resolved independently in a new case assigned OSHRC docket 

no. 19-1694. 

On June 10, 2019, revised Commission Rules became effective, including revised

Commission Rule 100 - Settlement. OSHRC Rules of Procedure, 84 Fed. Reg. 14554 (April 10, 

2019) (https://www.govinfo.gov/content/pkg/FR-2019-04-10/pdf/2019-06581.pdf) corrected at 

84 Fed. Reg.45654 (Aug. 30, 2019) (https://www.govinfo.gov/content/pkg/FR-2019-08-

30/pdf/2019-18736.pdf) ) and 84 Fed. Reg. 53052 (https://www.govinfo.gov/content/pkg/FR2019-10-04/pdf/2019-21414.pdf) (to be codified at 29 C.F.R. Part 2200). 
8 

Respondent’s March 19, 2019 notice of contest was not timely filed.

Pursuant to section 10(a) of the Act, after receipt of a citation, an employer has “fifteen 

working days within which to notify the Secretary that he wishes to contest the citation or proposed 

assessment of penalty.” If the employer fails to file a notice of contest within the fifteen working 

day period, “the citation and the assessment, as proposed, shall be deemed a final order of the 

Commission and not subject to review by any court or agency.” 29 U.S.C. § 659(a). 

The Secretary of Labor has prescribed requirements for an employer to timely make a 

notice of contest. The employer contest must be made in writing.7

 29 C.F.R. § 1903.17(a). See 

Sec’y of Labor v. Barretto Granite Corp., 830 F.2d 396, 398 (1st Cir. 1987) (per curiam). 

The citation Respondent received on January 15, 2019, regarding OSHA inspection 

#1365141, advised Respondent of the contest filing deadline. The citation emphasized that unless 

Respondent informed the OSHA Area Director, in writing, of its intention to contest the citation, 

within 15-working days after receipt, the citation would become a final order of the Commission.

See Sweeney Declaration ¶ 9, Exhibit A, page 2. The OSHA 3000 Booklet, sent to Respondent 

with the citation, also provided information regarding the actions an employer must take to timely 

submit a notice of contest after OSHA citations are received. See Sweeney Declaration Exhibit B, 

page nos. 4 and 8. 

It is undisputed that the January 11, 2019 citation was received by Respondent on January 

15, 2019. Respondent’s notice of contest was due on February 6, 2019. It is undisputed that 

Respondent did not file a notice of contest, on or before the contest due date.

It is undisputed that between January 15, 2019 when Respondent received the citation and 

February 6, 2019 when the notice of contest period ended, Respondent had no communication 

with the OSHA Andover Area Office or with AAD Sweeney. 

7

 Section 1903.17(a), in pertinent part, states: 

Any employer to whom a citation or notice of proposed penalty has been issued may, under 

section 10(a) of the Act, notify the Area Director in writing that he intends to contest such 

citation or proposed penalty before the Review Commission. Such notice of intention to 

contest shall be postmarked within 15 working days of the receipt by the employer of the 

notice of proposed penalty. 
9 

It is undisputed that Respondent’s March 19, 2019 notice of contest letter was late filed. 

Therefore, by operation of law, the citation and proposed penalty must be deemed a final order of 

the Commission, unless Respondent can demonstrate that it is entitled to relief. Id. at 398-400. 

The Secretary’s initial burden to establish grounds to dismiss Respondent’s late notice of 

contest are established. There is no dispute that Respondent’s March 19, 2019 contest letter was 

late filed. The burden shifts to Respondent to establish a basis for relief from the final order under 

Federal Rule of Civil Procedure 60(b). Respondent has not met its burden. See Taj Mahal 

Contracting, 20 BNA OSHC 2020, 2022 (No. 03-1088, 2004); Kerr-McGee Chem. Corp., 4 BNA 

OSHC 1739, 1740 (No. 9890, 1976). 

Respondent may not receive relief under Federal Rule of Civil Procedure 60(b) for its late filed 

notice of contest. 

An employer who has filed an untimely notice of contest may be granted relief under 

Federal Rule of Civil Procedure 60(b) in certain circumstances. George Harms Constr. Co. v. 

Chao, 371 F.3d 156 (3d Cir. 2004). A late filing may be excused under Rule 60(b)(1) if the final 

order was entered because of “mistake, inadvertence, surprise or excusable neglect.” A late filing 

also may be excused under Rule 60(b)(3)8 if the late filing was caused by the Secretary’s 

“deception or failure to follow proper procedures.” See Branciforte Builders, Inc., 9 BNA OSHC 

2113, 2117 (No. 80-1920, 1981); B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476-77 (No. 76-2165, 

1979). See also Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476, 478 (5th Cir. 1975) (per curiam).

Further, a late filing may be excused under Rule 60(b)(6), for any other reason that justifies relief, 

such as when “absence, illness, or a similar disability prevent[s] a party from acting to protect its 

interests.” Branciforte Builders, 9 BNA OSHC at 2116-17. It is the moving party’s burden to 

show that it is entitled to Rule 60(b) relief. See Burrows Paper Corp., 23 BNA OSHC 1131, 1132

(No. 09-1559, 2010); NYNEX, 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999). 

A party seeking relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’ 

suggesting that the party is faultless in the delay.” Where a party is partly to blame for the delayed 

filing, relief from the final order must be sought under Rule 60(b)(1) and the party’s neglect must 

8 Rule 60(b)(3) provides that relief from a final order may be granted where there is fraud, 

misrepresentation, or misconduct by an opposing party 
10

be excusable. See Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 

(1993) (Pioneer). In this case, Respondent does not contend that it is entitled to relief under Rule 

60(b)(6). The undisputed facts would not support granting relief under Rule 60(b)(6). 

Respondent asserts that it is entitled to relief from the Commission final order under 

Federal Rule of Civil Procedure 60(b)(1). Respondent asserts that filing its written contest was 

delayed due to Respondent’s ongoing good faith participation in negotiations with OSHA AAD 

Sweeney. Respondent asserts that Respondent President Antonelli held a “good faith belief” that 

the contest deadline has not lapsed. Further, Respondent contends that the late filed notice of 

contest did not prejudice the Secretary or negatively impact the Commission proceedings. 

Therefore, Respondent contends it is entitled to relief from the Commission final order due to 

“excusable neglect.” Objection pp. 1-2, 4-6. 

Regarding a request for relief due to “excusable neglect,” the Commission applies the 

equitable analysis stated by the Supreme Court in the Pioneer decision. This analysis considers 

“all relevant circumstances surrounding the party’s omission,” including (1) the danger of 

prejudice to the opposing party, (2) the length of the delay and its potential impact on the 

proceedings, (3) the reason for the delay, including whether it was within the reasonable control 

of the party seeking relief, and (4) whether the party seeking relief acted in good faith. Northwest 

Conduit Corp., 18 BNA OSHC 1948, 1950 (No. 97-0851, 1999) (quoting Pioneer, 507 U.S. at

395). See Evergreen Envtl Serv, 26 BNA OSHC 1982, 1984 (No. 16-1295, 2017). 

The Supreme Court stated that “inadvertence, ignorance of the rules, or mistakes 

construing the rules do not usually constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392. The 

Court found “excusable neglect” to be, in part, an “elastic concept” not restricted to “omissions 

caused by circumstances beyond the control of the movant.” Id. Regarding relief sought pursuant 

to Rule 60(b), the Court stated that “’excusable neglect’ is understood to encompass situations in 

which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394.

When evaluating claims of excusable neglect, many circuit courts focus on the third factor

in the Pioneer equitable analysis, “the reason for the delay, including whether it was within the 

reasonable control of the movant.” Id. at 395. 
11

The four Pioneer factors do not carry equal weight; the excuse given for the late filing must 

have the greatest import. While prejudice, length of delay, and good faith might have more 

relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry 

. . .. [A]t the end of the day, the focus must be upon the nature of the neglect. 

Hospital del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001) (per curiam) (quoting Lowry v. 

McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)). See Cohen v. Bd. of Trs. of Univ. 

of D. C., 819 F.3d 476, 479-80 (D.C. Cir. 2016) (same); Dimmitt v. Ockenfels, 407 F.3d 21, 24-25 

(1st Cir, 2005) (same); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366, 366 n.7 (2d Cir. 

2003) (same); Graphic Communications Int’l Union v. Quebecor Printing Providence, Inc., 270 

F.3d 1, 5-6 (1st Cir. 2001) (same); David E. Harvey Builders, Inc. v. Sec’y of Labor, 724 Fed. 

Appx. 7, 9 (D.C. Cir. 2018) (same). 9 

Other circuit courts emphasize that the Pioneer equitable analysis requires consideration 

of “all relevant circumstances” surrounding a party’s request for relief due to excusable neglect. 

Therefore, the “control” factor must not be weighted too heavily at the expense of the other 

relevant Pioneer factors. Avon Contractors, Inc. v. Sec’y of Labor, 372 F.3d 171, 174 (3d Cir. 

2004). See Coleman Hammons Constr. Co. v. OSHRC, 2019 WL 5782425, at *3 (5th Cir. 2019) 

(same); George Harms Constr., 371 F.3d at 164 (same). 

 Long-settled Commission precedent focuses on the third factor in the Pioneer equitable 

analysis. Evaluating a request for relief for a late filed notice of contest due to excusable neglect, 

Commission precedent states that a “key factor” is “the reason for the delay, including whether it 

was within the reasonable control of the movant.” CalHar Constr., Inc., 18 BNA OSHC 2151, 

2153-54 (No. 98-0367, 2000). In appropriate circumstances, the Commission finds this to be the 

dispositive factor. Commission decisions state that “[e]mployers must maintain orderly procedures 

for handling important documents,” and when the lack of such procedures results in the untimely 

filing of a notice of contest, Rule 60(b) relief is not warranted. A.W. Ross, Inc., 19 BNA OSHC 

1147, 1148-49 (No. 99-0945, 2000) (relief under Rule 60(b)(1) denied where the employer’s 

president failed to carefully read and act upon information contained in the citation); CalHar 

9 This matter could be appealed to either the D.C. Circuit or the First Circuit. The Commission 

generally applies the law of the circuit where a case will likely be appealed. Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). 
12

Constr.,18 BNA OSHC at 2153-54 (relief denied where administrative employees assigned to 

process the citation did not exercise diligence in timely filing a written contest). 

Commission decisions state that ignorance of procedural rules does not constitute 

“excusable neglect” and that mere carelessness or negligence, even by a lay person, in failing to 

timely file a notice of contest does not justify relief under Rule 60(b). Acrom Constr. Serv. Inc., 

15 BNA OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth Boring Co., 14 BNA OSHC 2187, 

2192 (No. 88-2521, 1991).

In this case, the citation Respondent received on January 15, 2019 advised Respondent of 

the contest filing deadline. The citation emphasized that unless Respondent informed the OSHA

Area Director, in writing, of its intention to contest the citation, within 15-working days after 

receipt, the citation would become a final order of the Commission. The OSHA 3000 Booklet, sent 

to Respondent with the citation, also provided information regarding the actions an employer must 

take to timely submit a notice of contest after OSHA citations are received. 

It is undisputed that Respondent did not contact the OSHA Area Office between January 

15, 2019, the date Respondent received the citation, and February 6, 2019, the end of the contest 

filing period. No explanation is provided by Respondent for its silence and inaction during the 

contest filing period. 

It is undisputed that after receiving the citation on January 15, 2019, Respondent did not

contact the OSHA Andover Area Office until March 18 or 19, 2019, more than one month after 

the contest filing period ended. No explanation is provided by Respondent for its silence and 

inaction during the period between Respondent’s receipt of the citation and mid-March 2019. On 

or about March 19, 2019, Respondent President Antonelli contacted AAD Sweeney to discuss the 

citation and request that the penalties be reduced. 

Respondent President Antonelli’s inaction during the contest filing period discloses his 

failure to carefully read and follow the requirements for filing a contest stated on the citation. An 

employer “must bear the burden of its own lack of diligence in failing to carefully read and act 

upon the information contained in the citations.” Acrom Constr., 15 BNA OSHC at 1126. See 

Craig Mechanical Inc., 16 BNA OSHC 1763, 1765-66 (No. 92-0372-S, 1994). In this case, there 

is no evidence that Respondent acted in bad faith. That said, the claim that Respondent President 
13

Antonelli held a “good faith belief” that the contest period had not lapsed is undermined by 

Respondent’s failure to carefully read the citation. 

While there is no evidence that Respondent’s late contest filing was prejudicial to the 

Secretary or negatively impacted the Commission proceedings, the undisputed facts disclose that 

the reason for the delayed filing was within Respondent’s reasonable control. See CalHar 

Constr.,18 BNA OSHC at 2153 n.5. Respondent’s delay in filing the notice of contest was a result 

of Respondent’s lack of diligence in failing to carefully read and act upon the information 

contained in the citation regarding filing a timely contest. This factor is dispositive. There is no 

justification for granting Rule 60(b)(1) relief in this case. 

Respondent also asserts that it is entitled to relief from the Commission final order under 

Federal Rule of Civil Procedure 60(b)(3). To support this assertion, Respondent again states that 

Respondent President Antonelli’s “ongoing negotiations” with AAD Sweeney led him to believe 

that the notice of contest deadline had not lapsed. Respondent asserts that AAD Sweeney’s 

“actions and representations confused and misled Respondent as to when or whether written notice 

was required.” Objection p. 10; See also Objection pp. 2-3, 6, 8, 9-10. The undisputed case facts 

do not support this contention. 

The undisputed facts reveal no misleading or confusing actions taken by AAD Sweeney, 

or by anyone in the OSHA Andover Area Office, regarding the requirement that a citation contest 

be filed with the OSHA Area Director, in writing, within the 15-working day period following 

Respondent’s receipt of the citation on January 15, 2019. See Barretto, 830 F.2d at 400 (an 

employer’s “subjective belief” that it is compliant with the contest requirements, does not qualify 

as an exception to the Section 1903.17(a) requirements that the contest be timely filed, in writing.). 

Prior to March 18 or 19, 2019, the only communication Respondent had with AAD 

Sweeney, or with anyone in the OSHA Andover Area Office, was one conversation shortly after 

the December 7, 2018 inspection, before the citation issued. AAD Sweeney told Respondent 

President Antonelli that once he received the citation, Mr. Antonelli could contact the OSHA 

Andover Area Office if he wanted to schedule an informal conference. During this call, there is no 

claim that AAD Sweeney communicated to Respondent a miscalculated contest filing deadline. It 

would have been impossible to state the contest filing deadline, as the citation had not issued. See 
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B.J. Hughes, 7 BNA OSHC at 1476-77 (fifteen day filing requirement tolled where the employer 

relied upon OSHA’s inadvertent erroneous calculation of the filing deadline). During this call, 

there is no claim that AAD Sweeney communicated to Respondent that a written contest was not 

required. 

Importantly, any questions Respondent President Antonelli had regarding how or when to 

file a timely notice of contest were answered on the face of the citation. Mr. Antonelli simply had 

to read the citation. Any confusion regarding the difference between an informal conference and 

a notice of contest was clarified by the specific instructions set forth in the citation. 

More than one month after the contest filing period ended, on or about March 19, 2019, 

Respondent President Antonelli contacted AAD Sweeney to discuss the citation issued and to 

request that the penalties be reduced. At this delayed date, March 19, 2019, Respondent filed its 

late notice of contest with the Commission. Thereafter, Respondent President Antonelli and AAD 

Sweeney communicated to schedule a meeting regarding the citation. Respondent President 

Antonelli, AAD Sweeney, and AD Covello met on May 14, 2019 and negotiated a partial 

settlement of the citation issued in OSHA inspection # 1365141, regarding the serious citation 

items, and a partial withdrawal of Respondent’s late notice of contest regarding the serious citation 

items. 

These later communications and negotiations, beginning in mid-March 2019, more than 

one month after the contest filing period ended, neither explain nor excuse Respondent’s failure to 

timely file a notice of contest during the 15-working day contest period that ended on February 6, 

2019. Certainly, these later communications and negotiations, could not have confused or mislead 

Respondent before the February 6, 2019 contest filing deadline. 

Respondent’s late filed contest was not caused by the Secretary’s “deception or failure to 

follow proper procedures.” See Branciforte Builders, 9 BNA OSHC at 2117. The undisputed facts 

do not justify granting Rule 60(b)(3) relief in this case. 

Finally, a party moving for relief pursuant to Rule 60(b)(1) must allege a meritorious 

defense. See Evergreen Envtl Serv, 26 BNA OSHC at 1985; Northwest Conduit Corp., 18 BNA 

OSHC at 1951. The Commission has found this requirement “satisfied with minimal allegations 

that the employer could prove a defense if given the opportunity.” Jackson Assocs. of Nassau, 16 
15

BNA OSHC 1261, 1267 (No. 91-0438, 1993). Respondent’s Objection sets forth defenses 

Respondent would rely upon regarding the willful citation, at issue in this case, if a hearing on the 

merits was held. See Objection pp. 6-9. Respondent contends that the willful citation item is 

duplicative of the serious citation items. Respondent also contends that Respondent was making 

good faith efforts to protect employee safety and health at the time of the inspection, therefore, the 

Secretary will be unable to prove the willful classification. See Objection p. 8. Before reaching 

the issue of whether Respondent has a meritorious defense to the citation, the record first must 

establish that Respondent has a basis for relief from the Commission final order under Federal 

Rule of Civil Procedure 60(b). Id. Because the record does not establish as basis for relief from 

the Commission final order for Respondent’s untimely filing, the issue of a meritorious defense 

need not be addressed further. 

CONCLUSIONS OF LAW

Respondent’s March 19, 2019 notice of contest letter was untimely filed. 

Respondent may not receive relief for the untimely filing under Federal Rule of Civil 

Procedure 60(b). 

ORDER

Based on the foregoing, the Secretary’s Motion is Granted. Respondent’s late notice of 

contest is Dismissed. The willful citation issued on January 11, 2019, in OSHA Inspection # 

1365141, is Affirmed in all respects, including the $56,908.00 penalty proposed for the willful 

citation. 

 /s/ Carol A. Baumerich

Dated: November 25, 2019 Carol A. Baumerich

 Washington, D.C. Judge, OSHRC