Janusz Szydlowski d/b/a J Home Improvement, Inc.

Plain-English summary

J Home Improvement received an OSHA citation by certified mail on April 26, 2000, making May 17 the deadline to contest. Its first response was a letter to the Commission received almost a year later. The owner argued that he had not received or understood information about the 15-working-day deadline. The judge found that the citation itself clearly explained the deadline and that a business owner who could not understand important government documents was responsible for obtaining assistance. The late contest was dismissed, and the citation and proposed penalty were affirmed in full.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citation.
• Outcome: Late notice of contest dismissed; citation and proposed penalty affirmed in full.
• Key point: Failure to read, understand, or seek help with a received OSHA citation does not excuse a contest filed nearly a year late.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                           :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 01-0980
:
JANUSZ SZYDLOWSKI d/b/a J HOME :
IMPROVEMENT, INC., :
:
Respondent. :
:
:

Appearances:
Steven E. Walanka, Esq. Mr. Janusz Szydlowski, Pres.
U.S. Department of Labor J Home Improvement, Inc.

     For Complainant                                       For Respondent

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER
   The citation setting forth the alleged violations and the accompanying notification of

proposed penalty was issued by certified mail on April 17, 2000 and received by the Respondent on
April 26, 2000. Pursuant to section 10 (a) of the Act, 29 U.S.C., sec.659 (a), Respondent was
required to notify the Secretary of any intent to contest within 15 working days of receipt of the
citation and notification of proposed penalty, or May 17, 2000. In the absence of a timely contest,
the citation and proposed penalty would be deemed a final judgement of the Commission by
operation of law. Section 10(a) of the Act. The Respondent did not file a notice of contest within the
prescribed period, and its first notice was a letter sent directly to the Commission and received on
June 5, 2001 requesting that the case be re-opened indicating he had not received notice that he
``could contest the case within 15 days.''

                                         DISCUSSION

The record clearly shows that the Respondent did not file a notice of contest within the 15
day contest period. Its first response was the letter to the Commission almost one year later. The
record reveals that the citation and notification of penalty together with OSHA booklet 3000 which
outlines Employer Rights and Responsibilities Following an OSHA Inspection was sent by certified
mail to the Respondent and duly received. In his letter to the Commission received on June 5, 2001,
Mr. Syzdlowski states, I did not received information that I could contest case within 15 days. I did not received by mail booklet OSHA 3000, so I did not now my rights and responsibilities.'' At the trial he admitted receiving the citation on April 26, 2000. The citation repeatedly admonishes that the 15-day deadline for contesting violation and/or penalties is critical. A paragraph captionedRight to Contest'' states that (u)nless 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. The booklet OSHA
3000 which accompanied the citation similarly advises of the need to file a timely notice of contest.
The record further shows that Mr. Syzdlowski was in the home improvement business for five years,
employed at least 4 persons, and obviously carried on all necessary business procedures such as
purchasing materials, obtaining new business and entering into contracts for work activity. He admits
and showed in his testimony an ability to understand and speak English. While not alleging an
inability to read, he intimates he could not. Previous to his home improvement business he was a
truck driver for twenty years delivering packages. Both his positions undoubtedly required a
reasonable ability to read in order to perform. If he could not read or understand the citation and
accompanying brochure it was incumbent upon him to request assistance from his accountant or
other persons. My impression of him at the trial leads me to believe that he testified in an intelligent
manner, was fully capable of response to the questions and was able to conduct a business over a
length of time, all pointing to sufficient intelligence and ability to successfully read and understand
the documents sent to him or to get help with them. The Commission has held that a business must
have orderly procedures for the handling of important documents and that the onus is upon the
employer to have the necessary steps taken to see that OSHA matters are handled properly. If as
alleged, a businessman such as herein does not fully comprehend the important documents forwarded
by a governmental agency, he is obliged to have the citation, etc. which he acknowledges receiving
fully explained to him. It is clear that the untimely filing herein was due to negligent handling of the
citation by the Respondent. Respondent had clear notice of the need to contest within 15 days. Its
mistake was neither excusable nor justified by any misconduct or misleading on the part of the
Secretary. The motion by the Secretary to dismiss is GRANTED, the notice of contest is dismissed,
and the citation and notification of penalty is AFFIRMED in all respects.
SO ORDERED.

                                                          /s/
                                                   IRVING SOMMER
                                                   Chief Judge

DATED: 15 OCT 2001
Washington, D.C.