North Bergen Animal Hospital

Plain-English summary

OSHA issued North Bergen Animal Hospital two citations and proposed penalties, but the hospital filed its notice of contest after the 15-working-day deadline. The hospital explained that a receptionist had opened the citation mail and placed it with solicitation mail that remained unread for several weeks. The ALJ found that the hospital's own mail-handling procedures caused the delay and did not amount to excusable neglect, so he dismissed the contest and affirmed the citations and proposed penalties. North Bergen later withdrew the matter before the Commission. The Commission acknowledged the withdrawal and made the ALJ decision its final order.

Decision snapshot

• Cited standard(s): The release does not identify the standards underlying the two citations.
• Outcome: The hospital's withdrawal left the late-contest dismissal, citations, and proposed penalties final.
• Key point: A business must maintain reliable procedures for reviewing official mail, and misrouting an OSHA citation into a pile of solicitation mail does not excuse a late contest.

Full text (OSHRC public release)

                            UNITED STATES OF AMERICA
    OCCUPATIONAL-       SAFETY    AND HEALTH REVIEW          COMMISSION
                              One Lafayette Centre
                        1120 20th Street, N.W. - 9th Floor
                           Washington, DC 20036-3419


                                             .
                                             l

SECXETARY OF LABOR, ..
.0
Complainant) ..
.c
V. l
. Docket No. 92-1204
.
NORTH BERGEN ANIMAL HOSPITAL, ;
..
Respondent. ..
l
.

                                     ORDER

   On May 17) 1993, North Bergen Animal Hospital (North Bergen) filed a notice

of withdrawal in the above-captioned case. The Commission acknowledges receipt
of North Bergen’s notice of withdrawal. There being no matters remaining’befor6
the Commission for adjudication) the administrative law judge’s decision affirming the
citations and proposed penalties is the final order of the Commission.

                                                   y&cdl
                                             Edwin Go Foulke, Jr.
                                             Chairman                     V




                                             Velma Montoya
                                             Commissioner

Dated May 25, 1993
 NOTICE OF ORDER

   The attached Order by the Occupational Safety and Health Review Commission

was issued and sewed on the following on May 25, 1993.

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Dr. Gerald M. Buchoff, Director
North Bergen Animal Hospital
9018 Kennedy Boulevard
North Bergen, NJ 07047

Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, N. W. - 9th
Washington, D. C. 20036-34 19

                                                  FOR THE COMMISSION




                                                  Executive   Secretary

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC. 20006-I 246

                                                                            FAX:
                                                                            COM (202) 634-4008
                                                                            FE 634-4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-1204
NORTH BERGEN ANIMAL HOSPITAL
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION                           .

 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on July P 1992. The decision of the Judge ’
will become a final order of the Commission on July 31, 1992 unless a .
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE -.
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
July 21, 1B92 in order to ermit sufficient time for its review. Y! ee .
Commission Rule 91, 29 t! .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health .
Revrew Commission
1825 IS St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.

Date: July 1, 1992
DOCKET NO. 92-1204
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SoQi&or, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C.’ 20210

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Dr. Gerald M. Buchoff
North Bergen Animal Hospital
9018 Kennedy Boulevard
.North Bergen, NJ 07047

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt 5l
Review Commission
Room 417/A
1825 K Street, N.W.
Washington, DC 20006 1246

  b

00101484301:02
 UNITED STATES OF AMERICA - - - -- -- - - -
\, OCCUPATIONAL SAFETY .---
AND HEALTH
.------ -- REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246

                                                                                                 FAX:
                                                                                                 COM (202) 6344006
                                                                                                 FTS 634-4006
                                           ..

SECRETARY OF LABOR, ..

    Complainant,

            v.                                       Docket No. 92-1204

NORTH BERGEN ANIMAL
HOSPITAL, and its successors,

    Respondent.

                                           .
                                                                                             .

                                          ORDER

    By motion dated May 12, 1992, the Secretary moves to dismiss the Respondent’s

Notice of Contest as not being timely filed under Section 10 of the Act. The Respondent
filed a letter in opposition.
The record demonstrates that two citations and notification of proposed penalties
were issued to the Respondent on March 6, 1992, and received on March 7, 1992. Under
Section 10(a) of the Act, 29 U.S.C. 659(a), an employer must notify the Secretary that
it intends to contest the citations or proposed penalties within fifteen (15) working days of
its receipt. The Respondent had until March 30, 1992 to file its Notice of Contest, but did
not do so, Gling a letter dated April 10, 1992 stating, “ I know that it is late, but I just
became aware of the same this afternoon. They were apparently received by my Saturday
receptionist and placed in a pile with solicitation mail in my office. “ In a later letter
explaining the situation Respondent states, “She placed it in a pile with junk (solicitation)
mail on the shelf next to my desk. It was not in its envelope as my receptionists are
accustomed to opening the mail before bringing it to my desk. We are a small office and
I tend to leave my junk mail pile for several weeks at a time. “
 There is no evidence that the delay in filing was caused by “the Secretary’s deception
or failure to follow proper procedures.” Atlantic Marine, Inc. v. OSAHRC and Dunlop, 524
F2d 476 (5th Cir 1975). The Respondent’s failure to file its Notice of Contest in a timely
fashion was due to its own carelessness and negligence. The Commission has held that
employers whose improper business procedures has led to failure to file on a timely basis
are not entitled to relief. See Louisiana-PacificCorp., 13 BNA OSHC 2020,1987-1990 CCH
OSHD 128,409 (No. 86-1266,1989); StroudkbourgDyeing & Finishing Co., 13 BNA OSHC
2058, 1987-1990 CCH OSHD ll 28433 (No. M-1830, 1989). The office procedure of
Respondent, a going business should provide daily scrutiny of all incoming mail. The reason
advanced by the Respondent for its failure to file in a timely manner do not constitute
“excusable neglect” within Federal Rules of Civil Procedure 60(b). .
. Accordingly, the Secretary’s motion to dismiss the Notice of Contest is granted. The
Secretary’s citations and proposed penalties

                                              IRIhNG    $OMMER
                                              Judge

DATED: “3ul .. 1 1992
Washington, D.C.