Residential Contracting, Inc. (ALJ decision, February 22, 1995)

Plain-English summary

OSHA issued Residential Contracting, Inc. a serious citation and proposed penalty. After certified mail sent to the company president's residence was returned unclaimed, a compliance officer delivered the documents to the company's designated mail-receiving location with the president's approval. The company did not file its notice of contest within 15 working days because its president waited several weeks before retrieving the OSHA mail. The judge found that the delay resulted from the company's own careless mail procedures and was not excusable neglect. The notice of contest was dismissed, leaving the citation and proposed penalties affirmed in full.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Procedural. The late notice of contest was dismissed, and the citation and proposed penalties were affirmed.
• Key point: A business must maintain reliable procedures for promptly retrieving official mail, and delay caused by its own mail-handling practices is not excusable neglect.

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

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-2049
RESIDENTIAL CONTRACTING, INC.
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 January 23, 1995. The decision of the Judge will become a f5na.lorder of the Commission on February 22, 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. should be received by the Executive Secretary on or before in order to ermit sufficient time for its review. See 91, 29 C.F.Ef: 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. 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 rights may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: January 23, 1995
R& H. Darlingyr.
Executive Secretary
DOCKET NO. 94-2049
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 707
New York, NY 10014

Issac Indik, President
Residential Contracting, Inc.
30 Sherwood Avenue
Ossining, NY 10562

Irvin Sommer
ChieP Administrative Law Jud e
Occupational Safety and Heal lil
Review Commissron
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00109908525:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
.
COM (202)606-!51w
~~ (202)6o6405o
FTs@02)606-6100
Frs (202)6o64050

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SECRETARY OF LABOR, * 0
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Complainant,
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v. 0 l Docket No. 94-2049

RESIDENTIAL CONTRAClING,
INC.,:
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Respondent.
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Appearances:
Alan L Kammerman,Esq.
Issac Indik, President
Office of the Solicitor
Residential
U.S. Department of Labor
Contracting, Inc
For Complainant
For Respondent

Before: Chief Administrative Law Judge king Sommer

DECISION AND ORDER

On August 24,1994, the Secretary moved to dismiss the Respondent’s notice of contest

as not being timely file under section 10 of the Act. The Respondent file in opposition. A

hearing was held in New York, N.Y. on October 31,1994, concerning the motion to dismiss.

The Respondent was issued a serious citation and notification of penalty on April 21,

1994, which was forwarded by certified mail to his residence but was returned by the post

office department as “unclaimed.” Thereafter, the citation and accompanying information

concerning the rights of the respondent in the pending matter were personally delivered by

the compliance officer to an address previously given as constituting a mail receiving station for the respondent. The compliance officer, Ms. Smith testified that she delivered the

citation to a Ms. Montalno on May 20, 1994, that Ms. Montalno contacted Mr. Indik on the

CB and informed him that the OSHA compliance officer was delivering some mail and was

told by him to accept same. Ms. Smith received a written acceptance of the delivery on May

20, 1994, thusly under section 10(a) of the Act, the Respondent was required to notify the

Secretary that it intends to contest the citation or proposed penalty within fifteen working

days of its receipt, or on or before June 13, 1994. The Respondent did not file a notice of

contest within the 15 day period, sending a letter dated June 20, 1994, contesting the

penalties herein. Mr. Indik, the president of the Respondent corporation admitted talking

to Ms. Montalvo on May 20, 1994, and approving the receipt by her of the mail being

delivered by the compliance officer from OSH& his alibi for being late in sending the notice

of contest was that he did not realize its importance, and that accordingly he waited a few

weeks before picking the citation up from his mail drop. It is apparent that the Respondent’s

failure to file its notice in a timely fashion was due solely to his own carelessness and

negligence. He knew that there was mail waiting for him from OSHA at a place where he

indicated mail could be sent, yet did not go immediately to claim it. 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-Pacific Cop., 13 BNA OSHC 2020,

1987-90 CCH OSHD par. 28,409 (No. 86-1266,1989); Stroud!sbwgDyeing & FiGshi& Co.,

13 BNA OSHC 2058, 1987-90 CCH OSHD par. 28,433 (No. 88-1830, 1989). The office

procedure of Respondent, a going business should provided for reliable, continuous mail

delivery procedures. The reasons advanced by the Respondent for its failure to fiIe in a timely manner do not constitute “excusable neglect” within Federal Rule of Civil Procedure

Accordingly, the Secretary’s motion to dismiss the notice of contest is GRANTED. The

Secretary’s citation and proposed penalties are AFFIRMED in all respects.

IRVING S6ikMER
BJAN19 1995
Chief Judge
DATED:
Washington, D.C.