United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, 

 Complainant,

 v. 

 

RIEBER CONTRACTING, INC. OSHRC DOCKET NO. 19-1670

 Respondent. 

For Complainant: Elaine M. Smith, Esq. and Rachael Parsons, Esq., U.S. Department of Labor, Office of 

the Solicitor, 2300 Main Street, #1020, Kansas City, MO

For Respondent: Jalon Rieber, Pro Se, Rieber Contracting, Inc., 14370 260th Street, Council Bluffs, Iowa

 

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

DECISION AND ORDER GRANTING COMPLAINANT’S MOTION TO VACATE 

RESPONDENTS UNTIMELY NOTICE OF CONTEST

Jurisdiction 

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

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

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

the Commission. See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). The parties also 

stipulated to the Court’s jurisdiction. Ex. J-1, ¶ 11. 

Procedural Background

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

Respondent’s worksite located at 4827 Dodge Street. Omaha, NE on March 11, 2019. Tr. 31-34, 

105. On August 2, 2019, OSHA issued one citation with one serious item (“Citation”) to 

Respondent. Tr. 60, 104; Exh. C-9. The Citation proposed Respondent pay a penalty in the amount 

of $9,282.00. Exh. C-9. OSHA mailed the Citation to Respondent via United States Postal Service 
2

(“USPS”) certified mail on August 2, 2019. Tr. 60. Angela Rieber signed for the certified mail 

based on the certified mail return receipt provided by USPS, but the date she signed for it did not 

appear on the receipt. Tr. 108-09; Exh. C-10. Complainant used the date it received the receipt 

from the USPS as the date to begin the 15-day calculation. Tr. 109-110; Exh. C-8. Therefore, the 

Citation was received by and signed for by Respondent. 

The Citation informed Respondent of its right to contest the citations1 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. 

Tr. 106-07; Exh. C-9. 

Because Respondent was deemed to have received the Citation on August 9, 2019, 

Respondent’s Notice of Contest (“NOC”) was due by August 30, 2019. Tr. 111. Respondent failed 

to file its NOC by that date. Respondent had no contact with the Area Office between August 9, 

2019 and August 30, 2019 when the NOC period ended. Tr. 112.

On September 13, 2019, Jeff Funke, the former Area Director of the Omaha office, mailed 

a letter to Respondent stating it had failed to provide a certification of abatement of the Citation 

and the proposed penalty was due Tr. 113-14; Exh. C-11. This letter requested Respondent to 

respond within five business days with verification of abatement. Tr. 115; C-11. Respondent did 

not respond to the September 13, 2019 letter. Tr. 116. On September 20, 2019, Complainant issued 

a one item other-than-serious citation and notice of penalty to Respondent (“Abatement Citation”) 

1 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

for failing to certify abatement of the Citation had been accomplished. Tr. 116-17; Exh. C-12. The 

Abatement Citation was mailed certified mail to Respondent’s business office address and was 

received by Respondent on September 26, 2019 as evidenced by the receipt returned by the USPS. 

Tr. 117-18, 120; Exh. C-9, C-12. Respondent had no communication with the Area Office from 

September 26, 2019, when Respondent received the Abatement Citation, until October 9, 2019. 

Tr. 124. 

On October 9, 2019 Respondent’s owner, Jalon Rieber, spoke with the Area Director, 

Matthew Thurlby. Mr. Rieber stated someone had signed for the Citation and the Abatement 

Citation but he did not know about them because they were in his inbox. Tr. 124; Exh. C-8. Mr. 

Thurlby informed Mr. Rieber the Citation has become a final order and to contest he would have 

to file a late NOC. Respondent did not submit a late NOC at that time. Tr. 126. On October 18, 

2019, Scott Jacobson, then Acting Area Director, called Respondent and Respondent stated it 

would submit a late NOC on October 21, 2019. Id. Not having received the late NOC on that date, 

the Area Office again contacted Mr. Rieber to determine if he was going to submit a late NOC. 

Respondent did reply with a letter giving a factual background of the workplace accident but did 

not state it was contesting the Citation. Tr. 129; Exh. C-14. On October 25, 2019 Respondent 

emailed two letters to the Area Office indicating it was contesting the Citation. Therefore, the late 

NOC was filed 56 days after the contest period for the Citation had expired. Thus, 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. Fed. R. Civ. P. 60(b) states “[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)”). The rule lists the reasons that would provide a sufficient basis for granting 
4

the relief requested. Id. Subsection 60(b)(1) states that “mistake, inadvertence, surprise, or 

excusable neglect” constitute sufficient bases upon which Rule 60(b)(1) relief can be granted. Id. 

On December 16, 2019, Complainant filed his Motion to Vacate Respondent’s Late Notice 

of Contest (“Motion”) Complainant seeks affirmance of the Citation and the proposed penalty 

because Respondent failed to file a timely NOC and has demonstrated neither “excusable neglect” 

pursuant to Rule 60(b)(1) nor a meritorious defense. Complainant contends Respondent has failed 

to establish mistake, inadvertence, surprise, or excusable neglect. 

Hearing Held 

The Court held a hearing on July 23, 2020 to obtain testimony from witnesses. 

Complainant called Matthew Lombardi and Matthew Thurlby. Respondent called Angela Rieber 

and Jalon Rieber. 

Joint Stipulations

The parties entered into the following thirty-three (33) Joint Stipulations:

1. Rieber Contracting, Inc. is incorporated under the state laws of Iowa as a corporation. 

2. Rieber Contracting, Inc. engages in commercial construction. 

3. Rieber Contracting is headquartered at 14370 260th Street, Council Bluffs, IA 51503. 

4. Rieber Contracting receives mail, including invoices and contracts at 14370 260th Street, 

Council Bluffs, Iowa. 

5. Rieber Contracting, Inc. uses goods, equipment, machinery, tools, supplies, and 

materials which have originated in whole or part from locations outside the State of Iowa.

6. Rieber Contracting, Inc. performs work in the states of Nebraska, Illinois, Indiana, Arizona 

and Colorado. 
5

7. Rieber Contracting, Inc. is engaged in a business effecting interstate commerce within the 

meaning of Section 3(3) of the OSH Act, 29 U.S.C. 652(3). 

8. Rieber Contracting, Inc. was engaged in construction work at address on August 22, 2019. 

9. Rieber Contracting, Inc. employs approximately forty employees. 

10. Rieber Contracting, Inc. is an employer within the meaning of Section 3(5) of the OSH 

Act, 29 U.S.C. 652(5). 

11. The Review Commission has jurisdiction in this proceeding pursuant to section 10(c) of 

the OSH Act, 29 U.S.C. 651 et. seq. 

12. On March 11, 2019, an authorized representative of the Secretary of Labor, OSHA 

Compliance Safety and Health Officer, Matthew Lombardi, inspected a worksite located 

at 4827 Dodge Street in Omaha, Nebraska. 

13. Don Burgess was the project manager at the worksite subject to the inspection.

14. Don Burgess stopped by the worksite the morning of March 11, 2019 to deliver tapcons to 

Angel Francisco. 

15. NOT STIPULATED TO.

16. On March 11, 2019, Don Burgess was employed by Rieber Contracting, Inc. as a project 

manager. 

17. On March 11, 2019 Shelby Baumeister was employed by Rieber Contracting, Inc. as the 

Director of Operations.

18. On March 11, 2019 Angela Rieber was employed by Rieber Contracting, Inc. as the Office 

Manager.

19. Jalon Rieber is the owner/operator of Rieber Contracting, Inc. and is the Chief Executive 

Officer. 
6

20. Don Burgess, Shelly Baumeister, and Angela Rieber are paid by Rieber Contracting, Inc. 

at a rate set by Jalon Rieber. 

21. Jalon Rieber sets the work schedules and directs the work of Don Burgess, Shelby 

Baumeister and Angela Rieber.

22. Shelby Baumeister and Angela Rieber regularly work at the office located at 14370 260th 

Street, Council Bluffs, Iowa.

23. Rieber Contracting, Inc. contracted with Angel Francisco to install siding at the worksite.

24. Rieber Contracting, Inc. directed the work of Angel Francisco. 

25. Rieber Contracting, Inc. had the authority to fire Angel Francisco. 

26. On August 2, 2019, the Secretary issued a Citation and Notification of Penalty to 

Respondent as a result of Inspection Number 1384717. Citation 1, Item 1 alleges a Serious 

violation of 29 C.F.R. 1926.416(a)(1) and a proposed penalty of $9, 282.00. 

27. Citation 1 was mailed to Rieber Contracting at 14370 260th Street, Council Bluffs, IA 

51503. 

28. The address listed on the Iowa Secretary of State website for Rieber Contracting, Inc. is 

14370 260th Street, Council Bluffs, IA 51503. 

29. The green card for Citation 1 was signed for by Angela Rieber no later than August 30, 

2019. 

30. On September 20, 2019, the Secretary issued a Citation and Notification of Penalty to 

Respondent as a result of Inspection Number 1425538 for failure to submit an abatement 

certification. Citation 2, Item 1 alleges an other-than-serious violation of 29 C.F.R. 

1903.19(c)(1) and proposed a penalty of $744.00. 
7

31. Citation 2 was mailed to Rieber Contracting at 14370 260th Street, Council Bluffs, IA 

51503. 

32. The green card for Citation 2 was signed for by Gabriel Rodriquez on September 29, 2019. 

33. A notice of contest was submitted to the Omaha area office on October 23, 2019, by Shelby 

Baumeister.

34. Jalon Rieber attended a pre-hearing conference on January 2, 2020 as representative of 

Rieber Construction, Inc. 

See Exh. J-1. 

Controlling Case Law 

Upon receiving a citation, an employer has 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 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 NOC has not been filed. One instance is where the employer requests 

relief under Rule 60(b)(1). The Commission has held an employer may move under Rule 60(b)(1) 

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. 92-0372, 1994)(Respondent bears burden to establish 
8

basis for relief), aff’d per curiam 553 F.3d 633 (5th Cir. 1995)(unpublished). Relief under Rule 

60(b)(1) is the most appropriate basis for the relief requested by Respondent. 

An employer who has filed an untimely NOC may be granted relief under Rule 60(b)(1) 

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.” Id at 163 (Commission “has jurisdiction to entertain 

a late notice of contest under” the excusable neglect standard of Rule 60(b)(1));2 Branciforte 

Builders, Inc., 9 BNA OSHC at 2117. 

 In addition, the Commission requires a party seeking relief under Rule 60(b)(1) to show 

it had a meritorious defense that might have affected the outcome. Northwest Conduit, 18 BNA

OSHC 1948, 1949, 1951 (No. 97-851, 1999). See Evergreen Envtl Serv, 26 BNA OSHC 1982, 

1985 (No. 16-1295, 2017). 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 BNA OSHC 1261, 1267 (No. 91-0438, 1993). Before reaching the issue of whether 

Respondent has a meritorious defense to a citation, the record first must establish Respondent has 

a basis for relief from the Commission’s final order under Rule 60(b)(1). Id. If the record does not 

establish a basis for relief from the Commission’s final order for Respondent’s untimely filing

under Rule 60(b)(1), the issue of a meritorious defense need not be addressed. 

 In determining whether Respondent’s late 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 

2 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)).
9

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 at 1984. 

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

rules do not usually constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392.3 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 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. This definition has been applied to other federal procedural rules, including 

proceedings by the Commission. See NW Conduit Corp., 18 BNA OSHC at 1950. 

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. 

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 

3 Commission decisions are in comport with the Supreme Court and 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)(1). 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). Mr. Rieber, Respondent’s owner, 

testified he had received OSHA citations in the past and knows what to do when the company gets 

an OSHA citation. Tr. 186. 
10

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). 4

 

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). 

The D.C. Circuit5, the Eighth Circuit6 and the Commission are in agreement as to the 

factors to be considered and the weight being given those factors. 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 

4 This matter could be appealed to either the D.C. Circuit or the Eighth 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). 

5

 See Cohen v. Bd. of Trs. of Univ. of D. C., 819 F.3d 476, 479-80 (D.C. Cir. 2016); David E. 

Harvey Builders, Inc. v. Sec’y of Labor, 724 Fed. Appx. 7, 9 (D.C. Cir. 2018). 6

 Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000).
11

dispositive factor. 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 Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 

463 (8th Cir. 2000) (“excuse given for the late filing must have the greatest import”). See also 

David E. Harvey Builders, Inc. v. Sec’y of Labor, 724 Fed. Appx. 7, 9 (D.C. Cir. 2018) (same). 

Therefore, long-settled Circuit and Commission precedent 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. 

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 when the 

lack of such procedures results in the untimely filing of a NOC, relief under Rule 60(b)(1) 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). 
12

Analysis and Findings of Fact

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 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). 

Respondent has provided no excusable basis for its failure to file a timely NOC before 

August 30, 2019. 

Based on a discussion of the evidence below the Court finds the late NOC was the result 

of Respondent’s simple negligence and oversight which arose from the lack of a business process 

to promptly and accurately handle important incoming mail. The Citation was received at 

Respondent’s place of business. Respondent’s testimony he did not see the communication 

containing the Citation is insufficient to constitute “excusable neglect” under Rule 60(b)(1). See 

JLD Custom Carpentry, OSHRC Docket 12-0972 (Aug. 13, 2012, ALJ Coleman). As in JLD 

Custom Carpentry, this Court finds simple negligence and oversight are not grounds for relief 

under Rule 60(b)(1)7

 and the filing of the NOC was within Respondent’s control to accomplish. 

Angela Rieber, who during the period at issue was Respondent’s office manager, described 

the business process that was in place to process Respondent’s mail. J-1 ¶ 18. On direct 

examination from Mr. Rieber, Angela Rieber testified as follows:

Q. When we’re out of town on vacation or when we are gone 

together, what is the process for our mail?

A. We had it forwarded to Shelly Baumeister and Matt started in 

November of last --- 2019. And before that, it was just collected by 

anyone that was at the house. 

7 As noted in JLD Custom Carpentry, a long line of Commission decisions rejects the notion that 

negligence or carelessness can justify relief under Rule 60(b)(1). See Acrom Constr. Serv., 15 BNA 

OSHC 1123, 1126 (No.88-2291, 1991); see also Roy Kay, Inc., 13 BNA OSHC 2021, 2122 (no. 

88-1748, 1989); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). 
13

Q. When you receive Certified Mail at the house, what do you do 

with it?

A Any mail I get I just sign it and then just put it on the table.

On cross examination conducted by Solicitor Racheal Parsons, Angela Rieber further 

clarified the process in place for the processing of Respondent’s mail.

Q. Okay. And your home was also your office at 14370 260th Street 

in Council Bluffs, Iowa? 

A. Yes. We have a separate office on the property, but all the mail 

came to the same mail box, so our office – or post office lady would 

pull in to the – you know, onto the property, and she honked and 

then I’d come out and I’d just – she signed. She’d let anyone sign 

for it. So, I mean, I watched her let our – one of our guys sign it as 

I was walking out of the house to come get it from her. She just 

handed it to him, and he signed it, and then she handled it to me. 

*** 

Q. So, your personal mail came there and the mail for the 

company? 

A. Correct.

Q. Okay. And once that – once that mail came in, either to the 

mailbox or someone signed for it, what happened to the mail next? 

A. I just bring it in to the – into the house and just usually set it on 

our kitchen table and deal with it later. It was usually just too busy 

dealing with the kids, so I just – We would always get a stack of 

mail, you know, between the company and personal, so I just sat it 

down and go about the rest of my day. And I did not open everything 

right away.

Q. So, when did open it, what did you do with it? 

A. When I did open it, if I thought it was something important, I 

would either try to get it to him. But, you know, I can’t always 

verify when it was given to him because things just – I mean, our 

desk – our kitchen table became a catchall for everything, you know. 

It was just – kids’ stuff, office stuff, personal items. So, you know, 

just – and so if it got shuffled around, I forget things. 

*** 

Q. When there is mail for Rieber Contracting, was there a place you 

put that or at a home office or you mentioned there was another 

building that Rieber Contracting worked out of. Did you take the 

mail there?

A. I didn’t always take it out there. I usually just leave it on the 

kitchen table because I felt like if I left it there, it would bring more 

of my attention to it or his attention to it than taking it out to the 

office. 

*** 
14

Q. (Re-direct by Mr., Rieber) Would it be true to say that you only 

opened mail that was relevant towards stuff that you did? 

A. Yes.

A. So, what would you do with stuff that you did not recognize 

or wasn’t pertaining to you? 

A. Usually just set it on the table and wait for you to come 

around to having a, I guess, moment to discuss, like here’s the mail. 

This is important for you, you know. I can’t get it to you, but, I mean, 

you’re we don’t have a normal routine, no more schedule, because 

you travel a lot. 

*** 

Q. If I was out of town for an extended period of time, what would 

you do with the mail? I just stack it up and wait for you to come 

home and deal with it. Like I said, I was not really part of the 

company, and it’s all beyond my knowledge. And so, a lot if it, I 

just left alone because I thought that was better than me getting into 

it and not knowing what to do with any of it. 

*** 

Q. (Re-cross by Ms. Parsons) So what is the process when Mr. 

Rieber is out of town for getting important mail or important 

documents to him? 

A. I can’t get it to him. If anything, emails, we have Shelly 

Baumeister is connected to his email, and she watches his email 

closely now. But as far as paper documents, I just – we have to 

wait until he gets back into town. I don’t – I don’t, you know, 

forward anything to him. I just – we just wait. We hold on to it. 

And whenever he comes back into town, he gets his stack of mail 

and now they go through it. 

Tr. 143, 148-158. 

It is clear Respondent failed to have in place proper business processes and practices to 

ensure timely action as may be required during business operations for the proper and timely 

processing of mail. Mr. Rieber, on cross examination, testified Respondent did not have a business 

procedure in place to make sure he was copied from mail received from OSHA. Tr. 191. To the 

extent Respondent’s request for relief is premised on its failure to properly handle mail or 

documents, the Court would note the Commission expects employers to “maintain orderly 

procedures for handling important documents.” Louisiana-Pacific Corp., 13 BNA OSHC 2020 

(No. 86-1266, 1989); see also NYNEX, 18 BNA OSHC 1967 (No. 95-1671, 1999) (“‘The 
15

Commission has consistently denied relief to employers whose procedures for handling documents 

were to blame for untimely filings’ of [Notices of Contest].” (quoting E.K. Constr. Co., Inc., 15 

BNA OSHC 1165, 1166 (No. 90-2460, 1991))). While Respondent’s actions were clearly the 

product of neglect, the Court does not find that such neglect was excusable on the above basis. 

The Court further finds Respondent did not act in good faith. Not having a business process 

in place coupled with the fact it took Respondent nine days after talking to the Area Director on 

October 9, 2019 to file its late NOC demonstrates Respondent’s lack of good faith in wanting to 

timely act to protect its interests.

While there is no evidence Respondent’s late NOC filing was prejudicial to Complainant 

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 NOC 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. 

ORDER

 The Court finds Respondent failed to file a timely NOC and no relief under Rule 60(b)(1)

is justified.

The Complainant’s Motion is GRANTED. Respondent’s late NOC is dismissed, with 

prejudice. as untimely filed, and the Citation, classification and penalty are AFFIRMED in all 

respects.
16

SO ORDERED.

 /s/______________________________ 

 Patrick B. Augustine 

 Judge - OSHRC 

Date: August 24, 2020 

 Denver, CO