1 

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. 15-0516

JMD ROOFING & SIDING, LLC,

 Respondent.

 

ORDER DISMISSING RESPONDENT’S 

LATE NOTICE OF CONTEST 

This matter is before the Occupational Safety and Health Review Commission 

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

U.S.C. § 651, et sec. (the Act). On October 21, 2015, Complainant, the Secretary of Labor 

(Secretary), filed a Motion to dismiss Respondent’s late notice of contest, together with a 

supporting memorandum of law, and attachments (Motion). On January 4, 2016, the Secretary 

filed a Supplemental Memorandum to the Motion to dismiss (Supplemental Memo). On 

January 15, 2016, the Secretary filed a Supplemental Motion to dismiss Respondent’s late 

notice of contest, together with a revised supporting memorandum of law, and additional 

attachments (Supplemental Motion). The Secretary’s Motion and Supplemental Motion 

request that Respondent’s late notice of contest be dismissed and that the citation and penalty 

issued to Respondent in this case be affirmed by operation of law as a final order of the 

Commission. Respondent did not respond to the Secretary’s Motion, Supplemental Memo, or 

Supplemental Motion. 

A Notice of Hearing issued in this case on November 23, 2015. An Order issued on 

January 12, 2016. Respondent did not respond to the Hearing Notice or Order. 
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Respondent’s late notice of contest letter was received by and docketed with the 

Commission on March 30 and 31, 2015, respectively. 

For the reasons set forth below, Respondent’s notice of contest is dismissed. 

Background1

The Albany, New York, Area Office of the Occupational Safety and Health Administration 

(OSHA) inspected Respondent’s job site, located at 9 Delta Place, Kingston, NY 12401, on 

September 24, 2014. The inspection number is 996663. On November 3, 2014, OSHA issued to 

Respondent a five item serious citation, with subparts, and a one item other-than-serious 

citation and notification of penalty (citation). The citation alleged violations of OSHA’s 

construction standards, including standards regarding job site inspections, personal protective 

equipment, fall protection, fall protection training, portable ladders, ladder training, and first 

aid supplies, among others. The total penalty proposed was $8,400.00. The citation stated that 

unless Respondent informed the OSHA Area Director in writing of Respondent’s intention to 

contest the citation and / or proposed penalties, within 15 working days after receipt, the 

citation and the proposed penalties would become a final order of the Commission. The 

citation was written in English. 

On November 4, 2014, OSHA served the citation by USPS certified mail, return receipt 

requested, to Respondent’s address listed on the citation: JMD Roofing & Siding, LLC, 36 

Oakland Avenue, Danbury, CT 06810. The USPS Tracking form reveals that notice of the 

 

1

The background is based on the citations and on the other exhibits attached to the Secretary’s Supplemental 

Motion. These include the November 2014 USPS Tracking form, the returned envelope containing the citations 

marked “unclaimed,” the December 2014 UPS shipment receipt and delivery notification, the January 2015 UPS 

delivery notification, the Declaration of Rita Young, Assistant Area Director OSHA Albany Area Office, Respondent’s 

handwritten late notice of contest dated March 17, 2015, postmarked March 19, 2015, marked received March 23, 

2015, and the late notice of contest hand addressed envelope. 

The Secretary’s October 2015 Motion and January 2016 Supplemental Memo did not include a complete 

description of the Secretary’s communications and attempted communications with Respondent nor did they 

include the complete set of supporting exhibits attached to the January 2016 Supplemental Motion. The 

Secretary’s October 2015 Motion and January 2016 Supplemental Memo read alone are incomplete. Therefore,

greater weight has been given to the Secretary’s January 2016 Supplemental Motion. 

As Respondent has not responded to the many attempts by the Secretary and by the undersigned Judge 

to communicate with Respondent, in writing and by telephone, the representations made in the Secretary’s 

January 2016 Supplemental Motion, for the purpose of this Order, are regarded as uncontested. 
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correspondence from OSHA was left for Respondent on November 7, 2014, but there was “no 

authorized recipient available.” USPS Tracking further reveals that on November 25, 2014, the 

OSHA correspondence was noted as “undeliverable as addressed,” and “unclaimed / max hold 

time expired.” The envelope for the unclaimed citation that was returned to the OSHA Area 

Office was marked “Returned to sender. Unclaimed. Unable to Forward.” The handwritten 

note “ext.” was added to the street address to read: “36 Oakland Ave. ext.” (Supplemental 

Motion Exs. B, C, D). 

On December 11, 2014, OSHA again sent the citation to Respondent by United Parcel 

Service (UPS) 2nd day air delivery to Respondent’s address listed on the citation, including the 

name of Respondent’s owner: JMD Roofing & Siding, LLC, Jorge Tacuri, 36 Oakland Avenue, 

Danbury, CT 06810. UPS delivery notification indicates that the citation was delivered on 

December 17, 2014, signed by “Tacuri.” (Supplemental Motion Exs. E, F).

The memorandum of law supporting the Secretary’s January 2016 Supplemental Motion 

states, at page 3, that OSHA called Mr. Tacuri, on January 13, 2015. Mr. Tacuri stated that he 

did not receive the citation. Mr. Tacuri informed OSHA that his address was 36 Oakland Ave., 

Ext., Danbury, CT 06810. 

On January 13, 2015, OSHA once again sent the citation to Respondent by UPS 2nd day 

air delivery to Respondent’s address, adding “ext.” to the street address, and modifying the zip 

code, as follows: JMD Roofing & Siding, LLC, 36 Oakland Ave. Ext., Danbury, CT 06811. UPS 

delivery notification indicates that the citation was delivered on January 14, 2015, noting “met 

customer man.” (Supplemental Motion Ex. G). 

Shortly thereafter, Respondent participated in an OSHA informal conference. On 

January 29, 2015, Respondent’s owner Jorge Tacuri attended an informal conference regarding 

the citation, held at the OSHA Albany Area Office, with Assistant Area Director Rita Young. Ms. 

Young is a native Spanish speaker and all of her communications with Jorge Tacuri and with his 

wife, Maria Tacuri, have been in Spanish. During the informal conference, Assistant Area 

Director Young explained to Mr. Tacuri, in Spanish, that Respondent could contest the citation 
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by sending a notice of contest letter to the OSHA Albany Area Office by February 5, 20152. Mr. 

Tacuri nodded after the notice of contest method and deadline were explained to him. 

(Supplemental Motion Ex. H). 

On March 23, 2015, the OSHA Albany Area Office received a handwritten late notice of 

contest letter, dated March 17, 2015, regarding the citation issued in case number 996663, 

from Respondent’s owner Jorge Tacuri. The notice of contest envelope is postmarked March 

19, 2015. The notice of contest envelope, handwritten return address, reads: JMD Roofing 

Siding, 36 Oakland Av. Ext., Danbury, CT 06810. As translated by Ms. Young, the late notice of 

contest states: 

Hello, I am Jorge Tacori. I want to contest the case number 996663 toward company 

JMD Roofing and Siding. I’m the owner of the company. 

(Supplemental Motion Ex. I). 

Thereafter, on April 10, 2015, Assistant Area Director Young and Respondent’s owner 

Mr. Tacuri reached agreement in principal to settle the citation. That day, April 10th, 

Respondent advised Ms. Young that Respondent was moving to a new address. At that time, 

Ms. Young did not learn Respondent’s new address. (Supplemental Motion Ex. H). 

The stipulated settlement agreement was drafted. On April 30, 2015, Assistant Area 

Director Young called Mr. Tacuri at the phone number she had previously used to reach him. 

Ms. Young left a voice mail message for Mr. Tacuri advising him that the stipulated settlement 

agreement had been prepared and requesting Respondent’s new address so that the 

settlement agreement could be mailed to Respondent. Mr. Tacuri did not respond to Ms. 

Young’s voice mail message. (Supplemental Motion Ex. H). 

Since that time, Assistant Area Director Young attempted to contact Respondent 

regarding the citation numerous times. The last time Ms. Young spoke to Mr. Tacuri was on 

April 10, 2015. Ms. Young was unsuccessful in her attempts to learn Respondent’s new 

address. (Supplemental Motion Ex. H). 

 

2

February 5, 2015 is fifteen working days following Respondent’s receipt of the citation on January 14, 2015, as 

reflected on the UPS delivery notification. (Supplemental Motion Ex. G). 
5 

Assistant Area Director Young attempted to call Mr. Tacuri on May 27, 2015. On June 2, 

2015, Ms. Young called Mr. Tacuri, but at that time Mr. Tacuri’s phone was no longer accepting 

voice mail messages. That date, June 2, 2015, Ms. Young also called Mrs. Maria Tacuri, at her 

phone number, and left a voice mail message. On June 4, 2015, Mrs. Tacuri returned Ms. 

Young’s voice mail message. Ms. Young emphasized to Mrs. Tacuri the importance of Mr. 

Tacuri returning Ms. Young’s phone calls. On June 9, 2015, Assistant Area Director Young called 

both Mr. Tacuri and Mrs. Tacuri, but she was unable to reach either person. Ms. Young 

attempted to call Mr. Tacuri on July 15 and July 16, 2015, but was unable to reach him. At that 

time, Mr. Tacuri’s phone was no longer accepting voice mail messages. (Supplemental Motion 

Ex. H). 

Procedural Status Before the Commission 

Respondent’s late notice of contest letter was received by and docketed with the 

Commission on March 30 and 31, 2015, respectively. 

The Secretary filed a Motion for an extension of time to plead or otherwise move, on 

April 2, 2015, noting that this case involved an apparent late notice of contest. By Order, dated 

April 17, 2015, an extension of time to June 4, 2015 was granted. Both the Motion and Order 

were served on Respondent, by first class mail, to the address set forth on the citation. The 

Order was returned, unopened, to the Commission, with the postal marking: “Return to Sender. 

Not Deliverable as Addressed. Unable to Forward.”

The settlement was reported to the Commission, via email notification from the 

Secretary, on June 1, 2015. 

The Secretary filed a second Motion for an extension of time to plead or otherwise 

move, on July 29, 2015. The Motion noted that the Secretary reported this case as settled on 

June 1, 2015. Motion further advised, in part: 

The OSHA Area Office has left several telephone messages for Respondent in an effort 

to get him to execute the Stipulated Settlement Agreement, which the parties agreed 

to. As of today, the Respondent has not returned any of their telephone calls or the 

executed Settlement. As a result, the Secretary requests that this matter be returned to 
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the Court’s trial calendar and that he be granted additional time to analyze this matter 

in order to determine its suitability for litigation. 

A representative of the Secretary contacted Mr. Jorge Tacori (sic) in order to determine 

if he would consent to the Motion or sign the Stipulated Settlement and return it to our 

office and he advised us he only speaks “Spanish.” As a result, a representative of the 

Secretary, who speaks Spanish, attempted to contact Mr. Tacori (sic) twice but he did 

not answer his telephone so voice mail messages were left. As of the filing of this 

Motion, we have not yet heard back from Mr. Tacori (sic). 

By Order, dated August 14, 2015, an extension of time to August 21, 2015 was granted. 

Both the Motion and Order were served on Respondent, by first class mail, to Respondent’s

address set forth on the citation. 

The Secretary filed a third Motion for an extension of time to plead or otherwise move, 

on October 5, 2015, to determine if this matter is suitable for litigation. By Order, dated 

October 19, 2015, an extension of time to October 23, 2015 was granted. Both the Motion and 

Order were served on Respondent, by first class mail, to Respondent’s address set forth on the 

citation. 

On October 21, 2015, the Secretary filed a Motion to dismiss Respondent’s late notice of 

contest, together with a supporting memorandum of law, and attachments, requesting that 

Respondent’s late notice of contest be dismissed and that the citation and penalty be affirmed 

by operation of law as a final order of the Commission. The Secretary’s October 2015 Motion 

was incomplete and did not present a full description of the communications between the 

Secretary and Respondent.3 A Certificate of Service accompanied the Secretary’s Motion, 

indicating service on Respondent by first class mail, as follows: Jorge Tacori, 36 Oakland Avenue 

Ext., Danbury, CT 06811. Respondent did not respond to the Secretary’s Motion within the 

time specified by Commission Rule 40(c), 29 C.F.R. § 2200.40(c). 

On November 23, 2015, a Notice of Hearing issued scheduling a hearing in this matter 

for January 26, 2016, concerning the relevant circumstances surrounding Respondent’s failure 

to file a timely notice of contest and whether or not Respondent’s late filing may be accepted. 

 

3

 See note 1 above. 
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The Hearing Notice also scheduled a prehearing conference call for January 5, 2016 at 9:30 a.m. 

The Hearing Notice advised all parties that failure to comply with the Order may result in 

appropriate sanctions, including dismissal of claims or defenses. See Commission Rule 101; 29 

C.F.R. § 2200.101. The Hearing Notice advised Respondent where the Commission Rules, 

written in Spanish, were located on the Occupational Safety and Health Review Commission 

website: www.oshrc.gov/→Publicaciones En Espanol. See Hearing Notice p. 3, n.2. The Hearing 

Notice was translated into Spanish and served in Spanish and English. The Hearing Notice was 

served on Respondent by first class mail and by certified mail return receipt requested to 

Respondent’s address set forth on the citation. Both the first class mail and certified mail 

envelopes were returned to the Commission, undelivered, with the postal marking “Return to 

Sender. No Such Number. Unable to Forward.”4

As the prehearing conference call was scheduled for January 5, 2016, the day before, on 

January 4, 2016, the undersigned Judge’s legal assistant attempted to call Respondent’s owner 

Mr. Tacuri regarding the scheduled conference call. Mr. Tacuri’s home and cell phone numbers 

were received by the Judge’s legal assistant from the Secretary. When the home number was 

first called, a woman answered the phone and stated no one by the name of Mr. Jorge Tacuri 

was there. When the home number was called a second time, the call went straight to voice 

mail and the legal assistant left a message for Mr. Tacuri. When Mr. Tacuri’s cell phone was 

called a recorded message announced that the voice mail box was full. The undersigned’s 

office never received a phone call from Mr. Tacuri in response to the voice mail message left on 

his home phone. 

On January 4, 2016, the Secretary filed a Supplemental Memorandum to the Motion to 

dismiss Respondent’s late notice of contest. The Supplemental Memo in summary fashion 

advised that an OSHA investigator, who is fluent in Spanish, had made numerous attempts to 

contact Respondent; however, Respondent had been entirely unresponsive to OSHA. The 

Secretary’s January Supplemental Memo was incomplete and did not present a full description 

 

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An internet query disclosed the address for Respondent’s registered agent as Jorge Daniel M. Tacuri, 36 Oakland 

Ave, Danbury, CT 06810. The address set forth on the citation. See https://www.statelog.com/jmd-roofing-andsiding-llc- danbury-ct. (Visited on December 3, 2015). 
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of the communications between the Secretary and Respondent.5 A Certificate of Service 

accompanied the Secretary’s Supplemental Memo indicating service on Respondent by first 

class regular mail at: Jorge Tacuri, JMD Roofing & Siding LLC, 36 Oakland Avenue Ext., Danbury, 

CT 06810. 

On January 5, 2016 a brief prehearing conference call was held. Counsel for the 

Secretary participated. No one from Respondent joined the call. Counsel for the Secretary 

advised that the Secretary recently had been unable to contact Respondent by telephone. The 

Secretary understood that Respondent had changed its address, but Respondent’s new address 

was unknown to the Secretary. 

On January 12, 2016, an Order issued cancelling the scheduled January 26, 2016 

hearing. The Secretary was asked to carefully review the October 2015 Motion, the January 

2016 Supporting Memorandum, and attachments, filed in this case, for accuracy and 

completeness. The Secretary was given an opportunity to file a Supplemental Motion, including 

any relevant affidavits, in this case. A copy of the November 23, 2015, Notice of Hearing was 

attached to the Order. The Order was translated into Spanish and served in Spanish and 

English. The Order was served on Respondent by first class mail and by certified mail return 

receipt requested to Respondent’s address: Jorge Tacori, JMD Roofing & Siding, LLC, 36 Oakland 

Avenue Extension, Danbury, CT 06810. The certified mail envelope was returned to the 

Commission, undelivered, with the postal marking “Return to Sender. Unclaimed. Unable to 

Forward.” USPS Tracking further notes “Undeliverable as Addressed.” The first class mail 

envelope was not returned. 

On January 15, 2016, the Secretary filed a Supplemental Motion to dismiss 

Respondent’s late notice of contest, together with a supporting memorandum of law, and 

attachments, requesting that Respondent’s late notice of contest be dismissed and that the 

citation and penalty be affirmed by operation of law as a final order of the Commission. A 

Certificate of Service accompanied the Secretary’s Motion, indicating service on Respondent by 

first class mail, as follows: Jorge Tacuri, 36 Oakland Avenue Ext., Danbury, CT 06811. 

 

5

 See note 1 above. 
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Respondent did not respond to the Secretary’s Supplemental Motion within the time specified 

by Commission Rule 40(c), 29 C.F.R. § 2200.40(c). 

Discussion 

Abandonment of Notice of Contest 

 On January 14, 2015 the citation in this case was delivered to Respondent by UPS 2nd

day air delivery to: JMD Roofing & Siding, LLC, 36 Oakland Ave. Ext., Danbury, CT 06811. The 

record discloses and I find that Respondent received the citation on January 14, 2015. Shortly 

thereafter, Respondent’s owner Mr. Tacuri participated in an informal conference with OSHA 

Assistant Area Director Young on January 29, 2015. The informal conference was conducted in 

Spanish. Mr. Tacuri was advised of the notice of contest method and the February 5, 2015 

notice of contest deadline. 

Respondent’s handwritten late notice of contest regarding the citation is dated March 

17, 2015. It was received by the OSHA Albany Area Office on March 23, 2015. The envelope 

containing the late notice of contest was postmarked March 19, 2015. The notice of contest 

envelope, handwritten return address, reads: JMD Roofing Siding, 36 Oakland Av. Ext., Danbury, 

CT 06810. Respondent’s late notice of contest was docketed with the Commission on March 

31, 2015. 

Thereafter, on April 10, 2015, during a telephone conversation, Respondent’s owner, 

Mr. Tacuri advised OSHA Assistant Area Director Young that Respondent was moving to a new 

address. Despite numerous attempts by the OSHA Albany Area Office to communicate with 

Respondent, in writing to Respondent’s known address, and by telephone to Respondent’s 

owner Jorge Tacuri and to his wife Maria Tacuri, Respondent has been completely 

unresponsive. Assistant Area Director Young’s telephone communications with Mr. Tacuri and 

his wife were in Spanish. Likewise, efforts by the undersigned Judge to communicate with 

Respondent, in writing and by telephone, have been unsuccessful. 

Commission Rule 6 requires that every party, including self-represented employers, 

advise the Commission Judge and all other parties to the proceeding of their current contact 
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information and promptly advise the Judge and all other parties of any change to their contact 

information. Commission Rule 6 “Record address” states:

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. 

Respondent’s owner, Jorge Tacuri, has not returned voice mail messages regarding this 

case left by the OSHA Assistant Area Director and by the undersigned Judge’s legal assistant. 

Respondent has not provided the undersigned Judge or the Secretary, OSHA’s representative, a 

party to this proceeding, with Respondent’s current mailing address. Therefore, pursuant to 

Commission Rule 6, Respondent is deemed to have waived his right to notice and service under 

the rules. Respondent’s actions reveal that Respondent has abandoned its notice of contest in 

this case. 

A Commission Judge has broad discretion to impose sanctions for noncompliance with 

the Commission’s Rules or Orders issued by the Judge. See Commission Rule 101(a); 29 C.F.R. § 

2200.101(a). Sealtite Corp., 15 BNA OSHC 1130, 1136 (No. 88-1431, 1991). 

The record in this case reveals that Respondent is aware of these proceedings. 

Respondent met with the OSHA Assistant Area Director for an informal conference to discuss 

the citation on January 29, 2015. Respondent wrote and filed the late notice of contest letter 

with the OSHA Albany Area Office. The late notice of contest envelope is postmarked March 

19, 2015. Thereafter, the record reveals that Respondent abandoned its notice of contest. 

After April 10, 2015, Respondent failed to participate in this proceeding, despite 

numerous efforts on the part of the Secretary and the undersigned Judge to promote his 

participation and elicit his response. These efforts include telephone calls and voice mail 

messages. Notably, Assistant Area Director Young’s informal conference and later telephone 
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communications with Respondent were in Spanish. These efforts also include several written 

Motions filed by the Secretary and a Hearing Notice and Order issued by the undersigned 

Judge. The Hearing Notice and Order were translated into Spanish and served on Respondent 

in English and Spanish. Notably the January 12, 2016 Order, which included a copy of the 

November 2015 Hearing Notice, was served to Respondent’s return address, as handwritten on 

the envelope containing Respondent’s late notice of contest. 

The facts of this case present a question whether Respondent received any of the 

written communications mailed to Respondent after April 10, 2015, when Mr. Tacuri told 

Assistant Area Director Young that Respondent was moving to a new address. Importantly, the 

facts also disclose that Respondent failed to respond to OSHA’s numerous telephone inquiries, 

in Spanish, to obtain Respondent’s new address.

Respondent’s consistent failure to participate or respond in this case indicates 

Respondent’s lack of interest in pursuing its notice of contest and reveals a pattern of disregard 

for Commission proceedings. See Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1547 

(No. 00-0389, 2001). 

I find that Respondent has been given proper notice of this proceeding and the 

opportunity to participate. I find that Respondent has failed to participate in this proceeding 

and abandoned Respondent’s notice of contest. I find Respondent in default. 

Untimely Filed Notice of Contest 

Positions of the Parties 

The Secretary’s Supplemental Motion contends that the citation should be affirmed as a 

final order of the Commission because: (1) Respondent did not timely file its notice of contest, 

(2) OSHA’s service of the citation, on January 14, 2015, by UPS 2nd day air delivery to the 

address Respondent provided to OSHA on Respondent’s late notice of contest envelope, was 

proper, (3) Respondent did not contest the method of service or Respondent’s actual receipt of 

the citation, (4) the late notice of contest does not establish “excusable neglect” for the 
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untimely filing under Federal Rule of Civil Procedure 60(b), and (5) Respondent did not raise a 

meritorious defense to the citation in the late notice of contest. 

In its late notice of contest, Respondent’s owner Jorge Tacuri simply states that he 

wants to contest this case. Respondent does not state the reason for the late filing. 

Respondent does not state its defenses to the violations alleged in the citation. 

Discussion 

Pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a), 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-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.” 

In this case, the record discloses and I find that Respondent received the citation on 

January 14, 2015, by UPS 2nd day air delivery. Respondent’s owner Jorge Tacuri and his wife, 

Maria Tacuri, met with OSHA Assistant Area Director Young on January 29, 2015, for an 

informal conference. The informal conference was conducted in Spanish. Respondent was 

advised, in Spanish, that Respondent could contest the citation by sending a notice of contest 

letter to the OSHA Albany Area Office by February 5, 2015. It is undisputed that Respondent 

did not file a notice of contest on or before February 5, 2015. Therefore, Respondent’s late 

notice of contest, postmarked on March 19, 2015 and received by the OSHA Area Office on 

March 23, 2015 was untimely. 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. 

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

Rule 60(b) in certain circumstances.6 George Harms Constr. Co. v. Chao, 371 F3d 156 (3d Cir. 

 

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In Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219 (2d Cir. 2002), the court concluded that the Commission 

did not have jurisdiction to reopen a citation under Rule 60(b), due to a party’s inadvertence or excusable neglect, 

once the citation was deemed a final order of the Commission pursuant to section 10(a) of the Act. In this case, the 

Secretary does not contend that the Commission may not exercise jurisdiction based on Rule 60(b). Further, under 
13

2004). A late filing may be excused under Rule 60(b)(1) if the final order was entered as a result 

of “mistake, inadvertence, surprise or excusable neglect.” A late filing also may be excused 

under Rule 60(b)(3), if the late filing was caused by the Secretary’s “deception or failure to 

follow proper procedures.” 7

 See Branciforte Builders, Inc., 9 BNA OSHC 2113, 2116-17 (No. 80-

1920, 1981); B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476 (No. 76-2165, 1979); Keppel’s Inc., 7 BNA 

OSHC 1442, 1443-44 (No. 77-3020, 1979). 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 2113, 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 (No. 09-1559, 2010); Elan Lawn and 

Landscape Serv., Inc., 22 BNA OSHC 1337, 1338 (No. 08-0700, 2008). 

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 Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 

380, 393 (1993) (Pioneer). In this case, the citation was received by Respondent on January 14, 

2015. Respondent met with the OSHA Assistant Area Director regarding this citation on January 

29, 2015, during which the contest method and contest deadline were explained to 

Respondent, in Spanish. Thereafter, Respondent delayed for seven weeks to write and mail the

late notice of contest, dated March 17, 2015, postmarked March 19, 2015. Respondent has 

provided no explanation for the delay in filing its notice of contest. Therefore, Respondent is 

not entitled to relief under Rule 60(b)(6). The undersigned thus regards Respondent’s late 

notice of contest to be a request for relief under Rule 60(b)(1), due to “excusable neglect.” 

In regard to Respondent’s request for relief because the late filing was due to 

“excusable neglect,” the Commission applies the equitable analysis stated by the Supreme 

 

either the Commission precedent set out below or the Second Circuit’s Russell P. Le Frois Builder decision, the 

result is the same.

7

 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. In this case, there is no allegation that the Secretary or his representatives misled 

Respondent as to the notice of contest filing deadline. 
14

Court in its Pioneer decision. This analysis takes into account “all relevant circumstances” and 

includes consideration of (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. 97-851, 1999), quoting Pioneer, 507 U.S. at 395. 

In evaluating whether the late filing of a notice of contest was due to excusable neglect, 

the Commission has found a “key factor” to be “the reason for the delay, including whether it 

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

2153 (No. 98-367, 2000). In appropriate circumstances, the Commission has held this to be the 

dispositive factor. Id.; A.W. Ross, Inc., 19 BNA OSHC 1147, 1149 (No. 99-945, 2000). The 

Commission has held that “[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, Rule 60(b) relief is not warranted. A.W. Ross, Inc., 19 BNA OSHC at 1149; 

Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989). 

In this case, Respondent prepared and filed a very brief late notice of contest, without 

explanation for the filing delay, without discussion of Respondent’s defenses to the violations 

alleged in the citation. Respondent’s late notice of contest does not dispute that Respondent 

received the citation on January 14, 2015. Respondent’s late notice of contest does not dispute 

that Assistant Area Director Young explained to Respondent’s owner, Mr. Tacuri, in Spanish, the 

notice of contest method and deadline, at the January 29, 2015 informal conference. 

Thereafter, since April 10, 2015, Respondent has failed to participate in this proceeding in any 

manner. Respondent has not returned voice mail messages left by the Assistant Area Director, 

in Spanish, or by the undersigned Judge’s legal assistant. Respondent has not provided the 

Commission or the Secretary with its current address and contact information. 

Ensuring the timely management and processing of important business documents, 

such as the citation received in this case, is within the employer’s reasonable control. See 

CalHar Constr., Inc., 18 BNA OSHC at 2153; J.F. Shea Co., 15 BNA OSHC 1092, 1093 (No. 89-
15

0976, 1991)(relief denied where the error in timely handling the citation occurred in the 

employer’s own office). Maintenance of orderly procedures for handling important documents 

is clearly within the reasonable control of Respondent. I conclude that this factor is dispositive 

and that there is no justification for granting Rule 60(b) relief in this case. 

Finally, the Commission has held that the moving party must allege a meritorious 

defense to be eligible for Rule 60(b) relief. See Northwest Conduit Corp., 18 BNA OSHC at 1952. 

In the late notice of contest, Respondent does not allege a meritorious defense to the citation. 

Decision 

Respondent has failed to provide its current address and contact information to the 

Commission or to the Secretary, a party to this proceeding. Therefore, pursuant to 

Commission Rule 6, Respondent is deemed to have waived his right to notice and service under 

the rules. 

I find that Respondent has been given proper notice of this proceeding and the 

opportunity to participate. I find that Respondent has failed to participate in this proceeding 

and abandoned Respondent’s notice of contest. I find Respondent in default.

Further, I find that Respondent’s notice of contest was untimely filed and that 

Respondent has not demonstrated that it is entitled to relief under Rule 60(b). I conclude that 

the reason for the untimely filing was within Respondent’s reasonable control and that this 

factor is dispositive. 

Based on the foregoing, the Secretary’s Supplemental Motion is Granted, Respondent’s 

late notice of contest is Dismissed, and the citation issued on November 3, 2004 is Affirmed in 

all respects. 

SO ORDERED. 

 /s/ 

Dated: March 24, 2016 Honorable Carol A. Baumerich 

Washington, D.C. Judge, OSHRC