United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, ROOM 407

DENVER, COLORADO 80202-2517 

SECRETARY OF LABOR, 

 Complainant, 

 v. 

JRA CONSTRUCTION CORPORATION, 

 Respondent. 

 

 

 OSHRC Docket No.: 22-0048 

For Complainant: Timothy S. Williams, Esq. and Karen Bobela, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1244 Speer Blvd. #515, Denver, CO 80204 

For Respondent: Jose Rodriquez, JRA Construction Corporation, 338 Spruce St., Bennett, CO 80102

JUDGE: First Judge Patrick B. Augustine, U.S. Administrative Law Judge 

DECISION AND ORDER GRANTING COMPLAINANT’S MOTION TO DISMISS

UNTIMELY NOTICE OF CONTEST

Jurisdiction

 

This proceeding is before the Occupational Safety and Health Review Commission 

(Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 651 et seq. (Act) due to the untimely filing of a Notice of Contest (NOC) by Respondent with 

the Commission. Jurisdiction over this action is conferred upon the Commission by Respondent 

filing a NOC. See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

Right to Request a Hearing

On March 7, 2022, the Court issued an Order to Respondent which advised the Parties, that 

either party could request a hearing on this matter within fourteen(14) days of the date of the Order. 

The Order to Respondent also stated that failure to request a hearing would be deemed a waiver 
2

of a hearing and the Court would proceed to issue its Findings of Fact and Conclusions of Law 

(Decision and Order) based on the filings contained in the record. Neither party requested a hearing 

on the late NOC issue. 

Procedural Background

The Occupational Safety and Health Administration (OSHA) conducted an inspection of 

Respondent’s worksite located at 22721 Narrowleaf, Aurora, CO on May 8, 2021. As a result of 

the inspection, OSHA issued one “Repeat-Serious” citation to Respondent (Citation.) The Citation 

proposed Respondent pay a penalty in the amount of $22,527.00 for the Repeat-Serious citation 

(Citation 1, Item 1). 

OSHA mailed the Citation to Respondent via United States Postal Service (USPS), 

certified mail, to Respondent’s office at 338 Spruce, Bennett, CO 80102. Based on the certified 

mail return receipt provided by USPS, the Citation was received by and signed for by Respondent 

at 11:19 am on June 19, 2021 by Maria Velasquez.1 

 The Citation informed Respondent of its right to contest the citation2 and stated, in part: 

Right to Contest: ...

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. 

See Citation and Notification of Penalty, p. 2. 

1 See Exhibit A attached to Complainant’s Opposition to Relief Under Federal Rule of Civil Procedure Rule 60(b).

2 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. 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).
3

 Respondent was entitled to fifteen (15) working days to contest the Citation. Respondent’s 

NOC was due by July 9, 2021. Respondent failed to file its NOC by that date. Respondent filed its 

NOC contesting the Citations and associated penalties on December 12, 2021, by sending a written 

NOC, certified United States Mail, to the Commission3

. Thus, using December 12, 2021, as the 

operating date on which the timeframe runs, the NOC was over five months late. The late NOC 

filed with the Commission provided no reason for its delay. It also appears to acknowledge its 

responsibility for the Citation. Respondent takes issue only with the issue the Citation was issued 

as Repeat citation. The record indicates no informal conference was held due to the NOC being 

untimely filed. 

By operation of law, the Citation has become a final order of the Commission. By filing a 

late NOC Respondent has, in effect, requested relief from the operation of § 10(c) of the Act. Rule 

60(b) states that “[o]n motion and just terms, the court may relieve a party or its legal representative 

from a final judgment, order, or proceeding . . . .” Fed. R. Civ. P. 60(b)(Rule 60(b)). Rule 60(b)

lists the reasons that would provide a sufficient basis for granting the relief requested. Id. 

On February 23, 2022, Complainant filed his Opposition to Relief Under Federal Rule of 

Civil Procedure Rule 60(b) (Motion). Complainant seeks affirmance of the Citation and the 

proposed penalties because Respondent failed: (i) to file a timely NOC; (ii) to demonstrate 

“excusable neglect” pursuant to Rule 60(b)(1); and (iii) Respondent received actual notice of the 

Citation and failed to comply with the instructions—typed in bold-face and underlined print—

indicating the deadline for filing a NOC. 

3 The late NOC sent to the Commission came from the same address to which the Citation was sent by OSHA and to 

which all Orders and Notices of the Court were sent. 
4

Controlling Case Law 

Upon receiving a Citation, an employer has fifteen (15) working days within which it must 

file a NOC. See § 10(a) of the Act, 29 U.S.C. § 659(a). If the employer does not file a NOC within 

the specified time 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.” Id. An uncontested 

citation is generally unreviewable. See Culver v. U.S. Dept. of Labor Occupational Safety & Health 

Administration, 248 Fed. Appx. 403 (3rd Cir. 2007). 

 The Commission has recognized two situations where the finality of § 10(a) of the Act, 29 

U.S.C. § 659(a), does not preclude the Commission from hearing an employer’s challenge to 

citations even when a timely notice of contest has not been filed. The first is where the Secretary 

has employed deceptive practices or fails to comply with required procedures. See Secretary of 

Labor v. Louisiana-Pacific Corp., 13 BNA OSHC 2020 (No. 86-1266, 1989). There is nothing in 

the administrative record to suggest this situation is present in this case. 

The second situation is where the employer requests relief under Rule 60(b). The 

Commission has held an employer may move under Rule 60(b) for permission to file a late NOC. 

Branciforte Builders, 9 BNA OSHC 2113 (No. 80-1920, 1981). The burden is on the employer to 

show sufficient basis for relief under the rule. Id. See also Craig Mech. Inc., 16 BNA OSHC 1763, 

1764 (No. 92-0372s, 1994)(Respondent bears burden to establish basis for relief, aff’d per curiam

553 F.3d 633 (5th Cir. 1995)(unpublished). 
5

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.” See George Harms Constr. Co., Inc. v. 

Chao, 371 F.3d 156, 163 (3rd Cir. 2004) (Commission “has jurisdiction to entertain a late notice 

of contest under” the excusable neglect standard of Rule 60(b)(1));4 Branciforte Builders, Inc., 9 

BNA OSHC 2113, 2117 (No. 80-1920, 1981). 

A late filing also may be excused under Rule 60(b)(3)5 if the late filing was caused by the 

Secretary’s “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party.” 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). Respondent offers 

no argument Complainant engaged in fraud or misrepresentation. Respondent does argue that for 

four months it waited for OSHA to get back to it because of a question as to the corporate entity 

status of Respondent. Therefore, it alleges misconduct by Complainant. However, Respondent 

does not offer a reason it did not file a timely NOC while it was waiting for OSHA to get back to 

it. Respondent is not relieved from filing a timely NOC because it had questions as to the Citation 

it wanted answered from OSHA. To protect its rights it should have filed a timely NOC and then 

pursued its request for clarification from OSHA before the Court. 

4 But see Chao v. Russell P. Le Frois Builder Inc.,291 F.3d 219 (2d Cir. 2002) (concluding Commission may not 

exercise jurisdiction based on Rule 60(b)(1)).

5 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
6

Further, a late filing may be excused under Rule 60(b)(6)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. 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 be excusable. See Pioneer 

Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) (Pioneer). In this 

case, Respondent did not contend or present any evidence in its NOC which would justify relief 

under Rule 60(b)(6). 

In determining whether Respondent’s late filed NOC was due to “excusable neglect,” the 

Commission follows the Supreme Court’s test in Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. 

Partnership, 507 U.S. 380, 381 (1993). Under Pioneer, the Court must consider “the danger of 

prejudice to the [opposing party], the length of the delay and its potential impact on judicial 

proceedings, the reason for the delay, including whether it was within the reasonable control of 

the movant, and whether the movant acted in good faith.” Pioneer, 507 U.S. at 395. See Evergreen 

Envtl Serv, 26 BNA OSHC 1982, 1984 (No. 16-1295, 2017). In Pioneer, “excusable neglect” is 

defined as an equitable determination of all relevant circumstances surrounding the party’s 

omission, and the prejudice these circumstances presented to the opposing party.7

6 Rule 60 also has provisions for relief under Rule 60(b)(2) which allows for relief when newly discovered evidence 

that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b). Rule 

60(b)(4) also provides relief when a judgment is void. Finally, Rule 60(b)(5) also provides relief when the judgment 

has been satisfied, released, or discharged. Nothing in the factual record of the case indicates any of these provisions 

are implicated since a trial has not been held to invoke the “newly discovered” provisions. Likewise, there is nothing 

to indicate the judgment is void. Finally, Respondent’s late NOC clearly states the judgment has not been satisfied, 

released, or discharged. 7 This definition has been applied to other federal procedural rules, including proceedings by the Commission. See 

NW Conduit Corp., 18 BNA OSHC at 1950.
7

 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 392.8 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)(1), 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 

In NW Conduit, the Commission quoted Pioneer, noting that the “reason for the delay, 

including whether it was within the reasonable control of the movant,” is a “key factor” and, in 

appropriate circumstances, the dispositive factor. NW Conduit Corp., 18 BNA OSHC at 1950. See 

also A.W. Ross, Inc., 19 BNA OSHC 1147, 1148 (No. 9-0945, 2000); CalHar Constr., Inc., 18 

BNA OSHC 2151, 2153 (No. 98-0367, 2000); NYNEX, 18 OSHC 1944, 1947 (No. 95-1671, 1999) 

(finding because employer failed to present evidence on the reason for delay, it did not establish 

excusable neglect). See also Hospital Del Maestro v. NLRB, 263 F.3d 173, 174-75 (1st Cir. 2001) 

(“excuse given for the late filing must have the greatest import”). 

Therefore, long-settled Commission precedent9 focuses on the third factor in the Pioneer 

equitable analysis. 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 

8 Commission precedent states 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)(6). 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).

9 The Tenth Circuit, which is where this case arose, has not decided a contrary application of Pioneer and how the 

Commission has applied it. Thus, the Court will follow Commission case law on the issue presented. See Kerns Bros. 

Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000) (“Where it is highly probable that a case will be appealed 

to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even 

though it may differ from the Commission’s precedent.”). 
8

documents,” and when the lack of such procedures results in the untimely filing of a notice of 

contest, Rule 60(b)(6) relief is not warranted. A.W. Ross, Inc., 19 BNA OSHC 1147, 1148-49 (No. 

99-0945, 2000) (relief under Rule 60(b)(6) denied where the employer’s president failed to 

carefully read and act upon information contained in the citation); CalHar 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). 

It well settled the Commission requires an employer to exercise due diligence before it will 

find excusable neglect. Keefe Earth Boring Company, Inc., 14 BNA OSHC 2187, 2192 (No. 88-

2521, 1991); Craig Mechanical, 16 BNA OSHC at 1763. The Commission has consistently held 

“[e]mployers must maintain orderly procedures for handling important documents,” and that when 

the lack of such procedures results in the untimely filing of a notice of contest, relief under Rule 

60(b)(6) is not warranted. Villa Marina Yacht Harbor, Inc., 19 BNS OSHC 2185, 2187 (No. 01-

0830, 2003) (company messenger mishandled mail); A.W. Ross, Inc., 19 BNA OSHC 1147, 1149 

(No. 99-0945, 2000) (employer's president failed to carefully read and act upon information 

contained in citation); Montgomery Security Doors & Ornamental Iron, Inc., 18 BNA OSHC 2145, 

2148 (No. 97-1906, 2000) (record showed a breakdown of business procedures such that relief 

was not warranted even assuming employee sabotage); Louisiana-Pacific Corp., 13 BNA OSHC 

2020, 2021 (No. 86-1266, 1989) (notice of contest was overlooked due to personnel change in 

operations manager position). 

Analysis 

Respondent seeks relief from the operation of § 10(a) of the Act, which states: 

If, within fifteen working days from the receipt of the notice issued by the 

Secretary the employer fails to notify the Secretary that he intends to 

contest the citation or proposed assessment of penalty . . . the citation and 
9

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). 

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

or negatively impacted the Commission proceedings, 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) relief under any 

subsection. 

Because the Respondent failed to respond to the Motion, and in the hope Respondent would 

provide additional information as to the reasons why its NOC was late and provide information of 

its business process it had in place to process incoming mail, the Court issued on July 30, 2021, an 

Order to Respondent, directing Respondent to show cause within fourteen (14) days, why the 

Court should not issue judgment against Respondent, affirming the proposed violations in this case 

for: (1) failure to timely file a Notice of Contest pursuant to Commission Rule 33(b), 29 C.F.R. § 

2200.33(b); and (2) for failure to respond to Complainant’s Motion. To-date, Respondent has 

failed to file a response to the Court’s Order to Respondent. In addition, the Order to Respondent

has not been returned to the Court by the U. S. Postal Service as undeliverable. The Order to 

Respondent was sent to the address provided Respondent in its late NOC and also emailed to 

Respondent at the email provided in the late NOC. Under Commission Rule 6, it is Respondent’s 
10

duty to advise the Court of any change of address. See 29 C.F.R.§ 2200.6.10 Respondent has not 

filed a change of address with the Court. 

Respondent was provided an opportunity to provide the Court needed information by 

responding to the Order to Respondent. Respondent failed to take advantage of this opportunity to 

provide the Court with any information which could assist the Court in determining whether 

Respondent’s late NOC could be accepted under Rule 60(b)(1). 

 The Court finds OSHA, as well as this Court, have conveyed due notice to Respondent 

of its procedural rights and provided ample warning that its failure to comply with Court orders 

may result in the dismissal of its NOC. Respondent has failed to take advantage of the opportunity 

to advise the Court that it has not abandoned its case before the Commission. Every indication 

before the Court is that Respondent has walked away from its contest. Under these circumstances, 

the Court sees no worthwhile purpose in allowing this case to proceed by finding a basis for relief 

for its late NOC under any provision of Rule 60(b). There is no basis to believe Respondent will 

fulfill its pre-trial obligations or actually appear at the trial should the Court find Respondent is 

entitled to relief under Rule 60(b). 11 See Twin Pines Constr. Inc./Teles Constr., 24 BNA OSHC 

1500, 1504 (No. 12-1328, 2012) (No worthwhile purpose in proceeding to a hearing where a party 

has abandoned the case). The Court finds that Respondent relinquished its case with the intent to 

abandon. 1 C.J.S. Abandonment § 13 (2013). 

10 Rule 6 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.6, provides that:

Record Address: Every pleading or document filed by any party or intervenor shall contain the name, 

current address, and telephone number of his representative or, if he has no representative, his own 

name, current address, and telephone number. Any change in such information shall be communicated 

promptly in writing to the Judge, or the Executive Secretary if no Judge has been assigned, and to all 

other parties and intervenors. A party or intervenor who fails to furnish such information shall be deemed 

to have waived his right to notice and service under these rules.

29 C.F.R. § 2200.6 (emphasis added).
11

Order

Respondent bears the burden of demonstrating that it is entitled to relief. See Burrows 

Paper Corp., 23 BNA OSHC 1131 (No. 09-1559, 2010); Louisiana-Pacific Corp., 13 BNA OSHC 

2020, 2021 (No., 86-1266, 1989). Here, Respondent has provided no excusable basis for its failure 

to file a timely NOC before its due date. The Court finds Respondent failed to file a timely NOC 

and no relief under any provision of Rule 60(b) is justified.

Complainant’s Motion is GRANTED. Respondent’s NOC is dismissed, with prejudice, as 

untimely filed. The citations and penalties are AFFIRMED. Accordingly, the Court ORDERS: 

1. Citation 1, Item 1 is AFFIRMED as a Repeat-Serious citation and a $22,527.00 penalty 

is ASSESSED. 

SO ORDERED.

 Patrick B. Augustine 

 Patrick B. Augustine 

 First Judge – Denver OSHRC 

Date: May 9, 2022 

 Denver, CO