United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457 

SECRETARY OF LABOR, 

 Complainant,

 v. 

 OSHRC DOCKET NO. 15-0992

G.E.R.I.N. Home Improvements LLC, 

 Respondent. 

DECISION AND ORDER GRANTING SECRETARY’S MOTION TO DISMISS

UNTIMELY NOTICE OF CONTEST

This proceeding 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). On July 7, 2015, the Secretary filed his Motion to Dismiss 

Untimely Notice of Contest (Motion). Complainant seeks the dismissal of G.E.R.I.N. Home 

Improvements LLC’s (Respondent) Notice of Contest (NOC) as untimely filed, and an order 

affirming the citations and proposed penalties in their entirety. For the reasons that follow, the 

Secretary’s Motion is GRANTED. 

Background 

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

Respondent’s worksite located at 271 West Putnam Avenue, Greenwich, Connecticut 06830 on 

December 18, 2014. On February 12, 2015, OSHA issued a four item serious citation and a one 

item willful citation to Respondent. The two citations proposed Respondent pay a penalty in the 

amount of $21,600. OSHA mailed the citations to the Respondent’s address at 50 Maple Tree 
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Ave., Stamford, Connecticut via certified mail on February 13, 2015. The citations were

received by Respondent on February 18, 2015.1 

The citations informed Respondent of its right to contest the citations 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. 

(Motion, Exh. A, at p. 2; Biasi Aff., ¶ 6). 

 On March 2, 2015, OSHA’s Assistant Director, Steven Biasi, informed Respondent’s 

owner, Gerin Santiago, the deadline for filing a NOC was March 11, 2015. (Biasi Aff., ¶ 7). 

Because Respondent received the citations on February 18, 2015, Respondent’s Notice of 

Contest (NOC) was due by March 11, 2015. Respondent failed to file its NOC by that date. 

On March 16, 2015, OSHA’s Area Office received a NOC, dated March 12, 2015, from 

Respondent’s counsel, postmarked March 13, 2015. (Bias Aff., ¶ 9). 

In a letter dated March 16, 2015, OSHA’s Area Office informed Respondent’s counsel 

that the fifteen working day period expired on March 11, 2015; and as such the citations and 

proposed penalty were deemed a final order of the Occupational Safety and Health Review 

Commission (Commission) and are not subject to review by any court or agency. (Biasi Aff., ¶ 

10, Exh D). 

On June 17, 2015, OSHA’s Area Office received an unsigned NOC dated June 16, 2015, 

that was addressed to the Commission’s Executive Secretary. In it, Respondent stated that it 

“never received a notice which indicated the date of appeal. We now seek to appeal this 

determination both because the items were minor violations and immediately corrected once the 

 

1 See Motion, at p. 2; Steven Biasi Affidavit (Biasi Aff.), at ¶¶ 3, 4, 6. 
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employer was notified of same. The fines assessed seem exorbitant in view of the matters 

involved and also since the corrections have been made.” A similar NOC dated June 23, 2015, 

along with a June 23, 2015 certificate of service, both signed by Respondent’s counsel, were sent 

to the Commission’s Executive Secretary. 

OSHRC docketed the matter as Docket No. 15-0992. 

On July 7, 2015, Complainant filed his Motion. The Secretary’s seeks affirmance of both 

citations and their proposed penalties because Respondent failed to file a timely NOC and has 

demonstrated neither “excusable neglect” pursuant to Fed. R. Civ. P. 60(b) nor a meritorious

defense. 

Respondent has not filed any response to the Secretary’s Motion. 

Discussion

 Upon receiving a citation and notification of penalty, an employer has 15 working days 

within which it must file a NOC. See section 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). 

 Respondent may overcome the Commission’s final order under Federal Rule of Civil 

Procedure 60(b) (Rule 60(b)), if it was entered as a result 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 
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neglect standard of Rule 60(b)(1));2 Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 

80-1920, 1981). In determining whether a 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). 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 1948, 1950 (No. 97-851, 1999). 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. 

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”).

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

before March 11, 2015.3 In its NOC postmarked March 13, 2015, Respondent asserted that it 

“never received a notice which indicated the date of appeal.” It does not deny receiving the 

citations on February 18, 2015. It does not deny receiving citations that stated that its NOC must 

be submitted in writing within 15 working days after receipt of the citations. It does not deny 

 

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)).

3 The Court also finds that Respondent has not presented adequate evidence to support the proffering of any 

meritorious defense(s) to the citations. Instead, Respondent argues that it should be allowed to appeal the citations 

because the items were minor violations and immediately corrected, and the proposed fines were exorbitant. An 

alleged willful violation is not a minor violation.
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that on March 2, 2015, Assistant Director Biasi informed Mr. Santiago that the deadline for filing 

a NOC was March 11, 2015. Instead, Respondent stated that it did not receive a notice which

indicated the date of appeal. OSHA is not required to specify “the date of appeal” in its Citation 

and Notification of Penalty. Moreover, Respondent was told by OSHA’s Assistant Director that 

the deadline for filing a NOC was March 11, 2015. Respondent failed to heed Mr. Biasi’s notice 

and proceeded on its own noncompliant timeline. 

Respondent has remained silent on the NOC issues after this case was docketed at the 

Commission. Respondent has not filed a response to the Secretary’s motion. Respondent has 

not presented sufficient evidence for the Court to conclude that Respondent timely filed a NOC, 

or that its failure to timely file a NOC was due to excusable neglect. Respondent has not 

demonstrated any sort of mistake, inadvertence, surprise or excusable neglect that justifies 

grounds for relief from the Commission’s final order under Rule 60(b). See Burrow Paper Corp, 

No. 09-1559, 2010 WL 1715389, at *2 (O.S.H.R.C.A.L.J. Jan. 19, 2010) (Employer has burden 

of its own lack of diligence in acting upon information contained in the citation.). Respondent 

also has the burden of proving that it is entitled to Rule 60(b) relief; something it has failed to do 

here. NYNEX, 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999). 

Order

 The Court finds that Respondent failed to file a timely NOC and no relief under Rule 

60(b) is justified.

The Secretary’s Motion is GRANTED, Respondent’s NOC is dismissed in its entirety

with prejudice as untimely filed, and the citations and penalties are AFFIRMED in all respects.
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SO ORDERED.

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC JUDGE

Date: October 5, 2015 

 Washington, D.C.