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. 15-0190

GT TILE LOADING,

Respondent.

APPEARANCES: 

Timothy S. Williams, Counsel for Safety & Health; John Rainwater, Associate Regional 

Solicitor; James E. Culp, Regional Solicitor; M. Patricia Smith, Solicitor; U.S. Department of 

Labor, Washington, DC and Denver, CO 

 For the Complainant 

 Thomas Dunrud; Denver, CO 

 For the Respondent 

DIRECTION FOR REVIEW AND REMAND ORDER

Before: ATTWOOD, Acting Chairman and MACDOUGALL, Commissioner. 

BY THE COMMISSION: 

 At issue before the Commission is a May 5, 2015 decision of Administrative Law Judge 

John H. Schumacher affirming a two-item serious citation with a total penalty of $3,600 based 

on the judge’s determination that Respondent failed to timely file its notice of contest (“NOC”). 

For the reasons that follow, we direct this case for review, set aside the judge’s decision, and 

remand this case to the judge for further proceedings. 

On December 5, 2014, Respondent received the citation issued by the Occupational 

Safety and Health Administration. Respondent, appearing pro se, filed its NOC by email on 

December 30, 2014. In a letter dated January 12, 2015, OSHA informed Respondent that the 15-

working-day period allowed for contesting the citation had expired on December 29, 2014, and 

that Respondent’s NOC was untimely because it was not received until the next day. OSHA 
2

explained in the letter that if Respondent disagreed with this determination, it could 

communicate directly with the Commission. In a letter dated January 26, 2015, Respondent’s 

representative explained to the Commission’s Executive Secretary that he “was out of town for 

the Holidays at the end of the year so that was the first chance that I had to send the letter of 

contention.” The case was then docketed by the Executive Secretary and assigned to the judge. 

On February 11, 2015, the Secretary filed a motion to dismiss Respondent’s NOC. In his 

motion, the Secretary asserted that the NOC was untimely and argued that no basis for relief 

existed under Federal Rule of Civil Procedure 60(b), which sets forth the grounds for relief from 

a final order. The judge issued Respondent a show cause order on March 9, 2015, stating: “All 

initial indications are that Respondent has failed to timely comply with both the letter and the 

spirit of the Commission’s Rules of Procedure, thereby showing disrespect for the Commission 

and a lack of decorum in dealing with the legal process.” The judge ordered Respondent to 

answer the show cause order by April 3, 2015, but it does not appear that Respondent ever 

received the order. The certified mail envelope containing the order was returned to the judge’s 

office and marked “Addressee Unknown.” In his May 5, 2015 decision, the judge found that 

Respondent was not entitled to relief under Rule 60(b) and affirmed the citation as issued.1

 

Respondent subsequently submitted a letter to the Commission, which we construe as a petition 

for discretionary review. See 29 C.F.R. § 2200.91(b) (procedures for filing petition for 

discretionary review). 

The Occupational Safety and Health Act, 29 U.S.C. § 659(a), requires an employer to file 

a notice contesting a citation or proposed penalty assessment “within [15] working days from the 

receipt of the notice issued by the Secretary.” The day of receipt, as well as Saturdays, Sundays, 

and Federal holidays, are not included in computing the 15-working-day contest period. 29 

C.F.R. § 1903.22(c). Here, the 15 working days following Respondent’s receipt of the citation 

 

1

 In his decision, the judge also discussed Commission Rule 101(a), 29 C.F.R. § 2200.101(a), 

and declared Respondent to be in default. We note that when an NOC is untimely and there are 

no grounds for relief under Rule 60(b), it is unnecessary to consider whether a default judgment 

under Rule 101(a) is warranted, as an untimely NOC deprives the Commission of jurisdiction. 

29 U.S.C. § 659(a). In any event, the conduct to which the judge refers does not support entry of 

a default judgment under Rule 101(a)—most of the alleged conduct pertains to Respondent’s 

interactions with OSHA before this case was transmitted to the Commission and, thus, has little 

to do with whether Respondent “failed to plead or otherwise proceed as provided by these rules 

or as required by the Commission or Judge.” 29 C.F.R. § 2200.101(a). 
3

on December 5, 2014, were December 8-12, 15-19, 22-24, 29 and 30, 2014. This excludes all 

Saturdays and Sundays (December 6, 7, 13, 14, 20, 21, 27 and 28, 2014), as well as the Federal 

holidays on December 25 and 26, 2014, that were designated by executive order.2

 Respondent’s 

NOC, therefore, was timely filed on the 15th working day following receipt of the Secretary’s 

citation. Accordingly, we set aside the judge’s decision and remand this case for further 

proceedings. 

SO ORDERED. 

 

/s/ 

 Cynthia L. Attwood 

 Acting Chairman 

/s/ 

Heather L. MacDougall 

Dated: June 5, 2015 Commissioner 

 

2

 December 25 is defined as a Federal holiday in Executive Order 11,582, 3 C.F.R. 539 (1971-

1975), which pertains to “Observance of holidays by Government agencies.” The President 

issued an executive order on December 5, 2014 directing the closure of executive departments 

and agencies on December 26, 2014. Exec. Order No. 13,682, 79 Fed. Reg. 73,459 (Dec. 10, 

2014). Section 3 of this order states that “Friday, December 26, 2014, shall be considered as 

falling within the scope of Executive Order 11[,]582.” Id. Therefore, while it appears both the 

Secretary and the judge overlooked the status of December 26, 2014, it is a Federal holiday for 

purposes of calculating the 15-working-day period. 
 United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 721 19th Street, Room 407 

 Denver, Colorado 80202 

 Phone: (303) 844-3409 Fax: (303) 844-3759

 

SECRETARY OF LABOR,

Complainant,

 v.

GT TILE LOADING,

Respondent.

OSHRC DOCKET 

NO.: 15-0190

DECISION AND ORDER ON ORDER TO SHOW CAUSE 

On March 9, 2015, the Court issued an Order to Show Cause to Respondent to show by April 3, 

2015, that it had On February 11, 2015, that it had not demonstrated neglect by filing its Notice of 

Contest outside of the regulatory time period for doing so. The Court’s Show Cause Order included 

the following warning: “Failure to timely comply will result in sanctions being imposed by the Court, 

up to and including dismissal of Respondent’s Notice of Contest.”

This Show Cause Order was mailed to Respondent’s business address of Record via certified 

mail, return receipt requested. The USPS Article Number was 7008 1830 0000 5152 8103. On April 8, 

2015, the original certified mail envelope was returned to this office by the USPS marked “Addressee 

Unknown.” 

On February 11, 2015, Complainant had filed its Motion to Dismiss Untimely Contest in the 

instant case. Complainant related that Respondent did not file its Notice of Contest within the required 

period of time and that it had not demonstrated “excusable neglect” or any other ground for which 

relief is allowed under Federal Rule of Civil Procedure 60(b). The Complainant avered the following: 

1. On October 8, 2014 OSHA opened an inspection of Respondent’s worksite at 12017 West 

75th Lane, Arvada CO 

2. On December 4, 2014, OSHA issued a Citation to Respondent containing two items, with 
penalties totaling $3600.00. OSHA received confirmation of receipt by Respondent dated 

December 5, 2014. 

3. The Citation contained the standard Notice of Right to Contest, which included notice that 

Respondent had fifteen business days after receipt to inform the OSHA Area Director that it 

wished to contest the Citation and/or the proposed penalties. 

4. Respondent’s representative, Mr. Tom Dunrud, requested an informal conference, which 

was scheduled for December 22, 2014. However, Mr. Dunrud failed to appear at that 

informal conference. 

5. On December 30, 2014, Respondent submitted an untimely contest via electronic mail. 

OSHA responded by informing Respondent that the date to contest the Citation had passed. 

OSHA also provided the address of the Occupational Safety & Health Review Commission 

if Respondent wished to petition the Commission to reopen the matter. 

6. Two weeks later, on January 26, 2015, Respondent’s representative filed a Notice of 

Contest (NOC). In that Letter of NOC, Mr. Dunrud related that he “...was out of town for 

the Holidays at the end of the year, so that was the first chance that I had to send the letter 

of contention.” 

The record before the Court indicates that Respondent has failed to timely comply with both 

the letter and the spirit of the Commission’s Rules of Procedure, thereby showing disrespect for the 

Commission and a lack of decorum in dealing with the legal process. The Code of Federal 

Regulations, at § 29 C.F.R. 2200.101(1), provides that: 

“[w]hen any party has failed to...proceed...as required by the Commission 

of Judge, he may be declared to be in default either on the initiative of the 

Commission or Judge, after having been afforded an opportunity to show cause why 

he should not be declared to be in default, or on the motion of a party. Thereafter, the 

Commission or Judge, in their discretion, may enter a decision against the defaulting 

party or strike any pleading or document not filed in accordance with these rules.” 

The inherent powers doctrine allows a court to impose... respect, and 

decorum, in their presence, and submission to their lawful mandates. U.S. v. One 

Parcel of Real Estate Located at 1948 Martin Luther King Drive, Springfield, 

Illinois, 193 F.Supp.2d 1067 (C.D. Ill., 2002). 

The Court has carefully considered all the evidence in the record in the light most favorable to 

the Respondent. The Court notes that Respondent’s representative initially requested, but later failed 

to attend, an informal conference scheduled for December 22, 2014. By a letter and email dated 

December 30, 2014, Respondent’s representative purported to submit an untimely Notice of Contest. 

By another letter dated January 26, 2015, Respondent’s representative again purported to submit an 
untimely Notice of Contest. In this latest letter, Respondent’s representative advised that “I was out of 

town for the Holidays at the end of the year so that was the first chance that I had to send the letter of 

contention.” 

It appears to the Court that Respondent’s representative had received a copy of the Citation and 

Notification of Penalty via UPS Ground Delivery, and signed for same on December 5, 2014. This 

document contained an advisement as to the 15 day period in which any Notice of Contest could be 

timely filed. As further evidence that Respondent’s representative received and understood the 

procedural rules, Respondent’s representative requested an informal conference that was scheduled for 

December 22, 2014. However, Respondent’s representative elected to not appear at this scheduled 

conference. It now appears to the Court that he was instead “...out of town for the Holidays...”

The record is devoid of any evidence that Respondent’s representative made any good faith 

effort to reschedule the December 22, 2015 informal conference, prior to going “...out of town for the 

Holidays...” Consequently, the Court has no basis upon which to conclude that Respondent’s 

representative has demonstrated “mistake, inadvertence, surprise or excusable neglect” sufficient to 

excuse its failure to timely file a Notice of Contest.

ORDER

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that 

Respondent is declared in DEFAULT, its Notice of Contest is DISMISSED, and the citation items 

issued in this matter are AFFIRMED, and that all proposed penalties are hereby assessed. 

For administrative questions, please contact my legal assistant, Ms. Kate Sydney, at 303-844-

3409.

/s/ 

JOHN H. SCHUMACHER 

Judge, OSHRC 

Dated: May 5, 2015 

Denver, CO