Gallo Wine Distributors, Inc. (ALJ decision, April 21, 1994)

Plain-English summary

OSHA issued Gallo Wine Distributors a repeat citation and proposed penalty on June 29, 1993. An employee signed for the citation the next day, making July 22 the deadline for a notice of contest, but Gallo did not send its contest until September. Gallo said it had not received the citation, although the employee who signed for it also handled and distributed company mail. The judge found that Gallo's own inefficient mail procedures caused the delay and that simple negligence did not justify relief under Federal Rule of Civil Procedure 60(b)(1). He dismissed the late contest and affirmed the citation and proposed penalty in full. The decision does not identify the cited standard or penalty amount.

Decision snapshot

• Cited standard(s): No specific OSHA standard is identified in the decision.
• Outcome: Procedural. The late notice of contest was dismissed, and the repeat citation and proposed penalty were affirmed in full.
• Key point: An employer cannot reopen a late contest when its own careless mail-handling procedures caused it to miss the statutory deadline.

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 200364419

Pvme
-ms
m(2oz)dobdlm
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-2634
GALL0 WINE DISTRIBUTORS, INC.
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 Marcii 22, 1994. The decision of the Judge will become a final order of the Commission 011April 21, 1994 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 by the Executive Secretary on or before April 11, P994 in order to emit suffiaent time for its review. See Commission Rule 91, 29 c!.F.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. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOc
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.

Date: March 22, 1994
DOCKET NO. 93-2634
NOTICE IS GIVEN TO THE FOLL07NING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SO1Ekitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq l

Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 7Q?
New York, NY 10014

David S. Taub, President
Gallo Wine Distributors, Inc.
48-18 Northern Boulevard
Long Island City, NY 11101

Itin Sommer
Chief Administrative Law Jud e
Occupational Safety and Healt5l
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00108907924:02
 OCCUPATIONAL SAF~;~~~~~~c~EV,EW CohdhdlS8lON
One Lafayette Cents
1120 20th Stmet, N.W. - 9th Floor
Washington, w 20036-3419

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SECRETARY OF LABOR,
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Complainant,
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v. l l Docket NOe 93.2634 l

GALL0 WINE DISTRIBUTORS, i
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Respondent.
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Appearances:

Rebecca Rae Stem, Esq.
GeraML N-9 Mpe
U.S. Department of I&or
Gall0 wine Dim.
New York, N.Y.
Lang Island City, N.Y.

For the Complainant
For t& Respondent

BEFORE: Administrative Law Judge Irving Sommer

The Respondent WIISissued a repeat citation and notification of proposed penalty on June 29, 1993. A heating ~8s held in New York, NeYe on January 27, 1994 concerning the motion of the Secretary to dismiss the Respondent’s notice of contest as not being timely filed under Scctiun 10,of the Act.
Diana Corteg a safety supervisor in the Bayside, NeY. office of OSHA testified that a citation and notice of proposed penalty was issued to the Respondent on June 29, 1993 and ww. received on June 30,1993 being signed for by one Jose Pad&, an employee of the Respondent. She stated that the last day to contest the citation was July 22, 1993. 2

Respondent. Sk star& tfrat the last day to contest the citation was July 22, 1993. Thereafter, not brviag krd from the Respondent, a letter demanding payment was sent 011August 30, 1993 whichwas once again signed for by Jose Padilla on behalf of the Respondent. The Respondent telephoned her officeon August 31,1993 stating it had never was faxed to them on September 1. On received the citation and a copy of the citation September 16, 1993 the OSHA office received a letter from the Respondent dated September 7 which purported to be a notice of contest.
The evidence of record fMy demonstrates that the notice of contest herein was untimely filed It was due on or before July 22, 1993 and was not filed until well into September 1993. The Respondent says it did not receive the citation, yet it wpwsigned for by Mr. Padilla one of its employees who among other responsibilities also picked up mail and sorted and distriiiuted it. The Respondent’s failure to file its notice in a tint& f&&&n was due solely to its own carelessness and negligence. It is apparent that itr busintrlr l 0

procedures for the distribution of mail were inefficient and slovenly. The W
b 8s

held that employers whose improper business procedures has led to failure to Ek in 8 timely manner are not entitled to relief. See Lmdriiznu-Pacific Cop., 13 BNA OSHC 2020,X87-90 CCH OSHD par. 28,409 (No. M-1266,1989); Stmudsbwg Dyeing & Finirhttg Co., 13 BNA OSHC 2058,1987-90 CCH OSHD par. 28,433 (No. 88-18341989). The evidence does not establish excusable neglect or mistake under Rule 60(b)(l). What is indicated is simple negligence on Respondent’s part in carrying out its everyday business activities. Simple negligence will not establish entitlement to relief. E.K Constructin Co., 15 BNA OSHC 1165,1166,1991 CCH OSHD par. 29,412 (No. 90-2460,199l). Accordingly, the motion of the Secretary to dismiss is granted. t
ORDER
‘I&e citation issued to the Respondent on June 29,1993 and the proposed penalty is (1
AFFIRMED in all respects. i /
.1

IRVING SqhlMER
Judge
DATED: