Ezel / Agency Decisions / 94-2221-alj
OSHRC ALJ decision Docket 94-2221 Decided February 13, 1995 Procedural Judge Irving Sommer

Woronoffs Furniture

Untimely contest dismissed, citations affirmed

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This order from 1995 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 1995
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

Woronoffs Furniture received two OSHA citations and proposed penalties on April 4, 1994, making its notice of contest due by April 25. The company claimed it had mailed an April 11 letter requesting both an informal conference and a contest of the penalties, but OSHA had no record of receiving it during the contest period and the company offered no proof that it was sent. The president had read the OSHA booklet explaining that a written contest was required within 15 working days and that an informal conference did not preserve contest rights. The judge found that the late filing resulted from the company's own simple negligence, which did not justify relief. He granted the Secretary's motion to dismiss and affirmed the citations and proposed penalties in full.

Decision snapshot

  • Cited standard(s): The public release does not identify the standards by number.
  • Outcome: Procedural. The late notice of contest was dismissed, and both citations and their proposed penalties became final.
  • Key point: Requesting an informal conference does not replace a timely written notice of contest, and an unsupported claim that a contest letter was mailed did not establish relief from the deadline.

Full text (OSHRC public release)

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

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-2221
WORONOFF’S FURNITURE
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 12, 1995. The decision of the Judge
will become a final order of the Commission on February 13, 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 F’ILE A PETITION FOR DISCRETIONARY REVIEW.

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. 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. DO%
                     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) 606-5400.

Date: January 12, 1995
DOCKET NO. 94-2221
NOTICE IS GIVEN TO THE FOLLOWING:

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

Patricia Rodenhausen, -l .
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick, Room 709
New York, NY 10014

Keith Woronoe President
Woronoff’s Furniture
Box MM
130 Dolson Avenue
Middletown, NY 10940

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

00109054015:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. -9th Floor
Washington, DC 20036-3419

                                        ..

SECRETARY OF LABOR, ..
.a
Complainant, ..
..
v. 0. Docket No. 94-2221
..
WORONOFF’S FURNKURE, ..
..
Respondent. ..
\
..
.

Appearances:

  Nancee Adams-Taylor, Esq.                                    Keith Woronof& President
  U.S. Department of Labor                                     Woronoffs Furniture
  New York, N.Y.                                               Middletown, N.Y.

           Complainant                                                  Respondent

Before: Administrative Law Judge Irving Sommer

  The Respondent was issued two citations and notification of penalty on March 30,
  1. A hearing was held in New York, N.Y. on October 21, 1994 concerning the motion

of the Secretaq to dismiss the Respondent’s notice of contest as not being timely filed under

section 10 of the Act.

  Mr. Garret Westerveld, the Assistant Area Director in the Albany, N.Y. office of

OSHA testied that after an inspection of the Respondent’s premises a citation and

notification of proposed penalties were sent to him, together with a booklet (OSHA 3000),
2

which explained the employer rights and respons~Hities (Exh C-2). The employer received

the citation and accompanying booklet on April 4,1994 and had until April 25,1994 to file

a contest to the citations issued(Tr.14). He further testified that no notice of contest was

filed within said period, but that in response to a letter OSHA sent on April 13, 1994

concerning whether abatement of hazards had been carried he received a letter from Mr.

Brennan a corporate officer, which said, “We would like to request an informal conference

to discuss the conective action taken.” Since the Respondent was some distance from the

OSHA office, Mr. Westerveld called Brennan on April 20,1994 and discussed the corrective

action he had taken. No discussionswere had regarding filing of a notice of contest.(Tr 18).

After a call to the Respondent on June 6,1994 regarding the penalties due, Mr. Westerveld

stated that OSHA received a copy of a letter allegedly sent on April 11,1994 which stated,

“Please let this letter serve as notification that we request an informal conference regarding

the action taken on the citations and a request to contest the penalties imposed.“He stated

such letter was never received by OSHA during the contest period, and was not mentioned

previously.

 Mr. Keith Woronoff; the company president admitted receiving the citations and the

booklet which explained employer rights and responsibilities on April 4, 1994, and that he

had read the booklet.

He reiterated that the April 11,1994 letter was sent which requested a conference and also

was a contest.He further felt that the request for an informal conference was a request to

contest the matter.
3

 There is no corroborative evidence present, other than the Respondent’s self-serving

copy of an alleged letter dated April 11,1994 which it deems was a notice of contest. OSHA

records show no receipt of the same, and the Respondent offered no proof that it was sent.

At no time during the discussions regarding abatement of the hazards did the Respondent

bring up or call attention that it has filed a notice of contest herein. Mr. Woronoff admitted

reading the OSHA 3000 which accompanied the citations. This states in plain enghsh, “If you

wish to contest any portion of your citation, a notice of intent to contest must be submitted

in writing within 15 working days after receipt of the citation and notification of penalty even

if you have orally stated your disagreement with a citation, penalty, or abatement date during

a telephone conversation or an informal conference.” He was further advised of the time

period within which to file a contest on the face of the citations. Mr. Woronoff gave every

sign of being an intelligent, articulate individual. T(the employer) had carefully read even

portions of the written instructions stated and reiterated on the face of the-citations, he

would have known how to proceed- “Keefe Earth Boring Co. Inc, 14 BNA OSHC 2187,

2192(No. 88-2521,199l). While I am sympathetic to the plight of the Respondent, the failure

of the Respondent to file a timely contest herein was due to their own negligence; while Mr.

Woronoff read the OSHA booklet explaining his rights and responsl%ilities, he did so

carelessly and failed to carried out his stated obligations. Simple negligence on his part will

not establish entitlement to relief.

   The motion of the Secretary to dismiss is granted.

4

                                  ORDER

  The citations issued to the Respondent on March 30, 1994 and proposed penalties

are AFFTRMED in all respects.

                                                IRVING S&hER
                                                Chief Judge

DATED: -JAN-9 l99g
Washington, D.C.

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