Pardy Construction Corporation (ALJ decision, February 8, 1993)

Plain-English summary

Pardy Construction Corporation is a construction company based in Corona, New York. OSHA issued it a serious citation and an other-than-serious citation on March 11, 1992. The company filed its notice of contest by a letter dated May 13, 1992, long after the deadline. The Secretary moved to dismiss the contest as untimely, and a hearing was held on that issue. Chief Administrative Law Judge Irving Sommer found the company received the citations between March 11 and March 17, 1992, so the 15-working-day period to contest ended no later than April 7, 1992, and the May filing was late because of the company's own negligence in handling the citations. He dismissed the notice of contest as untimely. As a result, the citations and proposed penalties were affirmed in all respects.

Decision snapshot

• Cited standard(s): None specified. The decision turns on whether the notice of contest was filed on time, not on the merits of any standard.
• Outcome: Procedural. The notice of contest was dismissed as untimely, and the citations and proposed penalties were affirmed in all respects.
• Key point: A notice of contest must be filed within 15 working days of receiving the citation. A late filing caused by the employer's own negligence is not excused, and the citations become a final order.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON,
DC 20006~'246

                                                                                           :;b*’            --   .       c       1           ‘-‘A

• . _
  ---
  -
  2c
  .
  ^
  c L 1 -;

SECRETARY OF LABOR 1

v.
Complainant,
1 OSHRC DOCKE-r
) NO. 924682
PARDY CONSTRUCTION CORPORATION
Respondent.
I

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on January 7, 1993. The decision of the Judge will become a final order of the Commission on February 8, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE-A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received b the Executive Secretary on or before January 2P, 1993 in order to ermit su x icient time for its review. See Commission Rule 91, 29 C.F. k . 2200.91.
All further pleadings or communications
regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 200064246

Petitioning parties shall ;ilw mail a copy to:
Danlcl 1. .Mick, Esq.
Coun.4 ior Regional Trial Liti ation
Office 4 the Solicitor, U.S. DO5
Rown sjo()J
XH) ( Awtution Avenue, Y.W. b’;L\hIngton. DC 20210

If a Direction for Rewcw I\ Iwed by the Commission, then the Counsel for Regional Trial Litigation ~11 represent the Department of Labor. Any partv havmg questions about rww rights may contact the Commission’s Executivk Secretary or call (202) bW ‘W.
FOR THE COMLwN
/,

Date: January 7, 1993
Rav H. arling, Jr.
Exku e Secretary
P
DOCKET NO. 92.1682

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re 'onalTrial Liti ation
Office of the So7 icitor, U.S. DOY
Room S4004
200 Constitution Ave., N.W.
Washington. D.C. 20210
I

Patricia Rodenhausen,
Re ional Solicitor w.
O&ce of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Donovan Morris. Office Manager
Pard Construction Corporation
330lr 102nd Street
Corona, NY 11368

Irvin Sommer
Chie P Administrative Law Jud e
Occupational Safety and Heal B t
Review Commission
Room 417/A
1825 K Street, N.W.
Washington, DC 20006 1246

00106762164:02
 UNITED STATES OF AMERlCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246

FAX:
COM (202) 03-m
FTS 6344m

SECRETARY OF LABOR,
..

Complainant,

v. .. Docket No. 924682

PARDY CONSTRUCTION
CORPORATION,

Respondent.

Appearances:

Esther D. Curtwright, Esq.
Donovan Morris
U.S. Department of Labor
Office Manager
New York, New York
Corona, N.Y.
For the Complainant
For the Respondent

Before: Administrative Law Judge hing Sommer

DECISION AND ORDER
J.

Respondent was issued a serious citation and an other than serious
citation on
March 11, 1992 A hearing was held in New York, New York on October 22, 1992 concerning the motion of the Secretary to dismiss the Respondent’s notice of contest as not being timely filed.
Diana Cortez, a safetv4 supervisor in the Bayside, New York office of OSHA testified that the office records reveal that citations were issued to the Respondent
on March 11, 1992, return receipt requested, and a green card evidencing their receipt was returned to said office on March 17, 19%. She stated that her office first ascertained that a contest had been filed on June 24, after the Respondent’s letter to the Commission came to their attention. Prior thereto, on May 26, 19% she had spoken to Mr. Monks, the Respondent’s representative ti which the b records reflect the following notation, “Spoke to Donovan
Morris ofice manager who quested
a copy of citations because he could not locate his
copy.” (Exh. Cl) She test&d he had not told her during their conversation that the citations had not been received in a timely fashion. (T-10)
Mr. Donovan testified be had not received the original citations, and made inquiries
after another contractor on the same job told him they had been cited, and he then became “aware that we were supposed to be involved” (T-20) He further suggested that the citations sent my have been mistakenly taken by a doctor located in the basement of their office since at times they take each others mail. (T-25) He acknowledged .there is a clerical in his office named Eartha Clarke who handles the mail and that the signature on the green card which signifies receipt of the citations does look like her signature. (T-18)
A careful analysis of the evidence, the testimony of the witnesses for each party compel the conclusion that the Respondent received the citations after March 11;1992, and before March 17, 1992, and its filing of a notice of contest by letter dated May 13, 1992 and received on May 14, 1992, was untimely.

FINDINGS OF FACT
1a Citations were issued to the Respondent on March 11, 1992.
2 l The citations were received by the Respondent after March 11, 1992 and before March 17, 1992.
3. The fifteen working day period during which the notice of contest was required to be filed ended no later thao April 7, 1992.
4 l The Respondent did not file a notice of contest until May 13, 1992.
5. The Respondent did not file a notice of contest within the fifteen working day period after receipt of the citations.
6. Tbe late filing wu due to the negligence of the Respondent in the disposition of the citation.
 CONCLUSION OF IAW
The Respondent’s notice of contest was untimely filed and is DISMISSED.

ORDER
The citations and proposed penalties are AFFIRMED in all respects.

IRVING S&MER
.
Judge
DATED: JAN - 6 1333
Washington, D.C.