Pulaski Construction, Inc.

Plain-English summary

Pulaski Construction received an OSHA citation on May 14, 1993, making its written notice of contest due by June 4. Its contest letter was dated June 3 but postmarked June 11 and received by OSHA on June 15. The company president and a later letter from his clerk asserted that the notice had been placed in the mail on June 3, but those accounts conflicted with the president's earlier written statement and with each other. The judge found the evidence insufficient to rebut the postmark and concluded that the delay resulted from simple negligence and poor business procedures, not excusable neglect or mistake under Rule 60(b)(1). He dismissed the contest and affirmed the citation and proposed penalty in full.

Decision snapshot

• Cited standard(s): The public release does not identify the standard by number.
• Outcome: Procedural. The untimely notice of contest was dismissed, and the citation and proposed penalty were affirmed.
• Key point: An employer challenging a late postmark must present consistent, credible proof of earlier mailing; unsupported or conflicting office accounts do not establish relief from the contest deadline.

Full text (OSHRC public release)

Editorial note: the source PDF at this URL bundles two unrelated decisions. Only the Pulaski Construction, Inc. decision (Docket 93-2091) is reproduced below; the second decision contained in the same file, Monfort of Colorado - Greeley Lamb (Docket 93-2614), is a separate matter published on its own.

                          UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-2091
PULASKI CONSTRUCTION, INC.
Respondent.

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE LA7N JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on December 28, 1994. The decision of the Judge
will become a findl order of the Commission on January 27, 1995 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 1f 1995 in order to ermit stdi cient time for its review. See
Commrssi& Rule 91,29 C.F.k2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 2003603419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOY!iL
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 nghts may contact the Commission’s Executive
Secretary or call (202) 6063400.
FOR TEIE CO

Date: December 28, 1994
DOCKET NO. 93-2091
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
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 brick, Room 709
New York, NY 10014

Richard A. Pulaski, President
Richard A. Pulaski Construction
co., Inc.
436 Princeton Avenue
Mercerville, NJ 08619

Irvin Sommer
Chie KAdministrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00108665258:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSlON
One Lafayette Centre
1120 20th Street, N.W. - 9th floor
Washington, DC 2003-l 9

                                         *.

SECRETARY OF LABOR, l
.

                                         l
                                         .




   Complainant,                          ..
                                          0
                                          .
           v.                             ..      Docket No. 93-2091
                                         .

PULASKI CONSTRUCTION, INC., I
..
Respondent. ..
.
b

                                         .

Appearances:
Luis A Micheli,Esq. Richard A Pulaski, Pres.
U.S. Dept. of Labor Plllaski constnlctio~Inc
New York, N.Y. Menwille, NJ.

                  For the Complainant                             For the Respondent

BEFORE: CHIEF ADMINISTRA~ LAW JUDGE IRVING SOMMER

                                DECISION AND ORDER

   The Respondent    was issued a serious citation and notification of penalty on May 10,

1993. A hearing was held in Philadelphia, Pa. on November 18,1994 concerning the motion

of the Secretary to dismiss the Respondent’s notice of contest as not being timely filed urider

section 10 of the Act.

   Roberto Sanchez, a safety supervisor in the Marlton, N.J. office of OSHA testified

that a citation was issued to the Respondent on May 10, 1993 and was received on May 14,

1993. He further testified that the office records show that the Respondent did not file a
      notice of contest within the fifteen day working period(on or before June 4, 1993). He

further testified that a letter dated June 3,1993, in an envelope postmarked bv the U.S. Post

Office on June 11, 1993 was received on June 15, 1993.

   To counter the allegation that he was late in filing his notice of contest the company

president Mi. Pulaski testified that he had written the June 3,1993 letter of contest and had

given it to his clerk for typing and mailing as is usually done; he assumed it was done and

mailed the same day. Interestingly this scenario differs from the letter he wrote dated July

7, 1993 in response to a request for payment from OSHA in which he states, ” I put my

timely reply in the mail box on June 3, 1993, which is within the (15) Meen day period.”

And fblly, in filing a letter brief after the hearing, Mr. Pulaski attaches a letter from his

clerk in which she states she typed the letter on June 3,1993, and “put it immediately in the

mail box the same day.”

   The Commission has recognized that “Where the date of the postmark                establishes

initially that the notice of contest is untimely, the employer may rebut by introducing

evidence that the notice of contest was placed in the mails on a date other than that shown

by the postmark.” Stone Container Corporation,9 BNA OSHC 1832,1833. The burden was

on the Respondent to present evidence demonstrating that the notice was timely filed and

that the postmark was erroneous. The conflicting evidence presented by the Respondent

is totally insufficient to sustain his burden herein. His testimony and that of the self serving

letter sent in post hearing are totally at odds with a statement written long before the

hearing.

   The citations “plainly state(s)” the requirement to file a notice of contest within the

time period.” Roy Kay, 13 BNA OSHC 2021,2022. While I am sympathetic to the plight
 3

of the Respondent, it is apparent that there is no excusable neglect or mistake herein which

would render relief under Rule 60(b)(l). What is indicated here is simple negligence and

slovenly business practice. Mr Pulaski failed to have procedures which would monitor and

see that his clerical help was proceeding properly with the matters at hand. Simple

negligence will not establish entitlement to reliec E.K Comtmction Co., 15 BNA OSHC

1165,1166, nor will improper business procedures, Lmksiana-Pacific Cop., 13 BNA OSHC

2020. The preponderance of the evidence fully demonstrates that the Respondent’s notice

of contest was untimely filed, and that no relief under Federal Rule 60 is warranted. Motion

by the Secretary to dismiss the notice of contest is granted. The citation and proposed

penalty is AFFIRMED in all respects.

                                                      J+id--
                                                      IRVING SbMMER
                                                      Chief Judge

DATED: i23lgg4
Washington, D.C.