RCS Rizzoli Corp. of N.Y. (ALJ decision, October 18, 1993)

Plain-English summary

OSHA personally served a serious citation and penalty notice on the manager of an RCS Rizzoli bookstore. The company did not file its notice of contest within the required 15 working days because its operations manager failed to forward the citation to counsel before leaving on a business trip. The judge held that service at the inspected store was reasonably calculated to give the employer notice and was valid. He also found simple carelessness rather than excusable neglect under Federal Rule of Civil Procedure 60(b). The late contest was dismissed, leaving the citation and proposed penalties affirmed in full.

Decision snapshot

• Cited standard(s): Not identified in the decision
• Outcome: The Secretary's motion to dismiss the late contest was granted, and the citation and proposed penalties remained affirmed.
• Key point: A manager's failure to forward a properly served citation to counsel was simple negligence and did not justify relief from the 15-working-day contest deadline.

Full text (OSHRC public release)

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

PHONE: = Ax:
COM (202)6064100
c0M'202)606-5050
fTs(202)60&5100
ms (202)6OC5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3658
RCS RIZZOLI CORP. OF N.Y.
Respondent.

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 September 16, 1993. The decision of the Judge will become a final order of the Commission on October 18, 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 petition should be received b the Executive Secretary on or before October 6, 1993 in order to emit sufi cient time for its review. See Commission Rule 91, 29 C. Ep.R. 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO$L
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 rights may contact the Commission’s Executive Secretary or call (202) 606-5400.

FOR THE CO-SION
/

DOCKET NO. 92-3658
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
. 200 Constitution Ave., N.W.
Washington, DC. 20210

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014

Jesse Alan E stein, Esq.
Weisman, CePler, Spett & Modlin
445 Park Avenue
New York, NY 10022

Irvin Sommer
Chie P Administrative Law Jud e
Occupational Safety and Healt ?I
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00100486430:02

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

FAX.
COM (202)6064050 ns(202)606-5050

..

SECRETARY OF LABOR, ..

Complainant,

v. Docket No. 92-3658
..

RCS RIZZOLI CORP. N.Y., ..

Respondent.

.

Appearances:

Luis A Micheli, Esq.
Jesse Alan Epstein
U.S. Department of Labor
Weismaa, Celler, Spett & Modlin
201 Varick Street
445 Park Avenue
New York, New York 10014
New York, New York 10022

For Complainant
For Respondent

Before: Administrative Law Judge Irving Sommer

Respondent was issued a serious citation and a notification of penalty on October 19, 1992. A hearing was held in New York, New York on March 26, 1993, concerning the motion of the Secretary dated January 22, 1993, to dismiss the Respondent’s
notice of contest as not being timely filed under Section 10 of the Act.
On October 19, 1992, a serious citation and notification of penalty was issued to RCS Rizzoli Corp. of New York (Rizzoli) and was personally served on Tom Dutcher, manager of the Rizzoli bookstore that day. Mr. Dutcher delivered the citation to Ms. Eugenia

Pakalik, the operations manager of Rizzoli on October 20, 19%. Under Section lo(a) of the Occupational Safety and Health Act of 1970, 29 U.K. 659(a), an employer must notify the Secretary that it intends to contest the citation or proposed penalty within fifteen (15) working days of its receipt. Unless the employer notifies the Secretary within that time, the citation is “deemed a final order of the commission and not subject to review by any court or agency.” The Respondent had until November 10, 1992, to file its notice of contest, but did not do so, fling a letter dated November 30, 1992 requesting permission to file a late notice citing various reasons therefor.
It is abundantly clear and is admitted that Rizzoli did not file a timely notice of contest. The letter from Respondent’s attorney dated November 30, 1992 states, ‘The reason why a contest was not filed within the U-day period is that the violations were forwarded by our client to us by mail but were not received by us. At some point when our client realized that it had not heard from us, our client forwarded another copy of the violations to us. However, by then, the 15day period had expired.
Accordingly, it is respectfully requested that a late contest be permitted.”
At the hearing the Secretary established that the citation was issued on October 19, 1992 and served on the manager of the Rizzoli bookstore, Tom Dutcher the same day. Ms. Pakalik, Rizzoli’s operations manager testified that she received the citation from Dutcher on October 20, 1992, and after reviewing it called the corporate attorneys and advised them of its receipt. Pakalik stated that thereafter she left the city on corporate business, and realized later on that the attorneys had not been heard from on this matter. Further inquiry by her resulted in the finding that the attorneys had not received the citation, and it was forward to them after the lapse of the 15 day period, resulting in the late filing of the notice of contest.
ResDondent’s Arguments
Respondent argues that the service of the citation was improper, and therefore the
time to file the notice of contest had not expired. The record shows that the citation was served on Dutcher, the manager of the Rizzoli bookstore located on the premises of the Bloomingdale’s department store. He in turn delivered it to Pitakis, the operations manager who “read over the documents” and contacted the law firm. Counsel for the Respondent

2

relyingon gwk@ & Co. v.Secretary of Labor, 507 F&i 78 (2 OS-IC 1432)(3 Cir, 1975) states the service on Dutcher and Pitakis was improper since it was not served to an official at the coprate headquarters, but on a manager at the worksite. The Commission has declined to follow the 3d Circuit’s reasoning, and adheres to the principal stated in B..L Hughes, Inc., 7 BNA OSHC 1471, 1474, 1979 CCH OSHD par. 23,675 (No. 76-2165. 1979) “that the test to be applied in determining whether service is proper is whether the service is reasonably calculated to provide an employer with knowledge of the citation and notification of proposed penalty and an opportunity to determine whether to abate or contest. ‘Ihis approach is consistent with the test applied by courts in general when determining sufficiency of service in other areas of law.” (Cases cited).
In this case, the service was made on the manager of the store where the alleged
violations took place, and who was present at the inspection. The manager in turn knew to deliver the citation to the Rizzoli operations manager, a responslible position in the organization. Petakis, the operations manager perused the document, realized its importance and immediately called company counsel. Unquestionably, service. on Dutcher was reasonably calculated to provide the employer with the “requisite notice of the pending citation(s), and the need to proceed.” Thusly, setice herein was valid service on the Respondent.
The Respondent’s argument that the service of the citation is void since the incorrect party Respondent is named (RCS Rizzoli NY instead of Rizzoli International Bookstores, Inc.) is without merit. The setice was made on one with sufficient authority to act for the Respondent, and one reasonably expected to notify management of the pending citation. The evidence shows this was done by Ms. Petal&, although negligently.
..
Respondent further requests relief under Rule 60(b) of the Fed R. Civ. Pr. which provides in relevant part that “(o)n motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect.” The reason advanced for failure to file in a timely fashion was that the citation was tardily received from the client, i.e., counsel’s letter of the 30th of November, 1992 states the violations were forwarded to them by mail and not received, and when their absence was noted, another

COPY was sent. me testimony of MS Petakis demonstrates she received the citation on October 20, called counsel to alert them, and then left town for a California business trip forgetting to forward the citation, and did not realize it until at least two weeks later (around the 17th of November), at which time the fifteen day period was passed. Counsel responded by letter dated November 30 asking for approval of a late contest fling.
The citation “plainly state(s) the requirement to file a notice of contest within the prescribed time period.” Roy Kay, 13 BNA OSHC 2021,2022, 1987-90 CCH OSHD, par. 28,406 (No. 8&1748,1989). ACCOI$Acrom Consrnrction Services, 15 BNA OSHC 1123, 1126, 1991 CCH OSHD par. 29,393 (No. 88-2291, 1991). The evidence does not establish excusable neglect or mistake under Rule 60 (b)(l). What is indicated is simple negligence on Respondent’s part; Ms. Petakis left on a business trip and did not carry dut her proper responsibility to forward the citation to counsel although recognizing its importance after . reading same, and only came to recognize the error when the time to file had lapsed. The failure of the respondent’s operations manager who received the citation, was aware of its contents to properly forward it to counsel was pure carelessness and negligence, and did not constitute “excusable neglect” or “any other reason for justifying relief” under Rule 60 @)( 1).
Simple negligence will not establish entitlement to relief. E.K Constructid Co., 15 BNA OSHC 1165, 1166,199l CCH OSHD par. 29,412 (No. 90-2460, 1991); Rebco Steel Cop., 8 BNA OSHC 1235, 1980 OSHD par. 24,334 (Nos. 77-2040 & 77-2947, 1980).
Accordingly, the motion of the Secretary to dismiss is granted.

The citation issued to the Respondent on October 19, 1992,nand proposed penalties is AFFIRMED in all respects.

IRVING SO&U&R
Judge

DATED: %p - ? 493
Washington, D.C.