Ezel / Agency Decisions / 03-1364-alj
OSHRC ALJ decision Docket 03-1364 Decided April 26, 2004 Procedural Judge Irving Sommer

Danica Plumbing and Heating, Inc.

Late contest dismissed after default

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Currency note: this decision dates from 2004
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

OSHA issued Danica Plumbing and Heating a serious citation after inspecting a Bronx worksite. The company received the remailed citation but did not submit its notice of contest within the 15-working-day deadline. It then failed to appear for the hearing on the late filing even though the Secretary appeared ready for trial. The judge granted the Secretary's default motion and affirmed the citation and proposed penalties as issued.

Decision snapshot

  • Cited standard(s): None specified in the default order.
  • Outcome: The late notice of contest was dismissed by default, and the citation and proposed penalties were affirmed as issued.
  • Key point: An employer that files a late contest and then fails to appear for the hearing risks default and final affirmance of the citation.

Full text (OSHRC public release)

                      UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                             :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 03-1364
:
DANICA PLUMBING & HEATING, INC., :
:
Respondent. :
:
:

APPEARANCES: Terrence Duncan, Esq.
For the Secretary
No Appearance by Respondent
Before: Chief Judge Irving Sommer
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review Commission pursuant
to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. sec. 651 et seq.
Following an inspection of the Respondent's work site in the Bronx, New York, the
Occupational Safety and Health Administration issued a serious citation to the Respondent on April
24, 2003 which was returned undelivered. The citation was remailed and received by the Respondent
on May 22, 2003. Pursuant to Section 10(a) of the Act, Respondent was required to notify OSHA
of its intent to contest the citation within 15 working days of its receipt of the citation, and failure
to file a timely notice of contest would result in the citation and penalty becoming a final judgement
of the Commission by operation of law. Respondent failed to file a timely notice of contest and the
Secretary filed a motion to dismiss the Respondent's late notice. The case was set down for trial on
the facts concerning the late filing in New York, N.Y. on January 22, 2004. The Secretary appeared
ready for trial and there was no appearance by the Respondent. The Secretary moved to hold the
Respondent in default.
ORDER
Motion of the Secretary to dismiss the Respondent's late notice of contest. The motion for
a default is GRANTED. The citation and proposed penalties are AFFIRMED as issued.

                                              /s/
                                              IRVING SOMMER
                                              Chief Judge

DATED: March 26,2004
Washington, D.C.

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