Prince Carpentry, Inc.

Plain-English summary

Prince Carpentry, Inc. received a serious OSHA citation and proposed penalty on November 21, 1994, making its notice of contest due by December 14. The company did not contest until January 31, 1995, after a delinquency letter prompted a search that located the citation in the wrong office folder. Chief Judge Irving Sommer found that a new employee's misfiling reflected inadequate management procedures for important mail. He ruled that simple negligence and poor business follow-up were not excusable neglect or mistake under Rule 60(b). The judge granted the Secretary's motion to dismiss and affirmed the citation and proposed penalty in all respects.

Decision snapshot

• Cited standard(s): None enumerated; the decision concerns the late contest of a serious citation.
• Outcome: Procedural. The notice of contest was dismissed, and the citation and proposed penalty were affirmed in all respects.
• Key point: Misfiling OSHA paperwork within the employer's office does not excuse a late contest when management failed to maintain reliable mail-handling procedures.

Full text (OSHRC public release)

                                United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1120 20th Street, N.W., Ninth Floor
                             Washington, DC 20036-34 19



                                                                        Phone: (202) 606-5400
                                                                         Fax: (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-0248
PRINCE CARPENTRY, 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 August 3, 1995. The decision of the Judge
will become a final order of the Commission on September 5, 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 petition should be received b the Executive Secretary on or before
l
August 23, 1995 in order to ermit sUffsI
cient 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
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. DOf
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: August 3, 1995
DOCKET NO. 95-0248
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

John Jasinowski, Vice-President
Prince Carpentry, Inc.
1035 Second Avenue
New York, NY 10022

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

00109047845:02
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N. W., Ninth Floor
Washington,DC 20036-3419

Phone: (202) 6064405 Fax: (202)606-5409

                                                  ..

SECRETARY OF LABOR, .
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                                                  .
                                                  .




        Complainant,                              ..
                                                   ..
                   v.                               ..    Docket No. 95-0248
                                                  l
                                                  0

PRINCE CARPENTRY, INC., ..
..
Respondent. ..
..
..

Appearances:

                   Stephen Dubnoff, Esq. and                     Mr. John Jasionowski
                   Ms. Sabina Rezza                                      Vice-President
                           U.S. Department of Labor                      Prince Carpentry, Inc.
                           New York, New York 10014                      New York, New York 10022

                              For the Secretary             For the Respondent

Before: Sommer, C.J.

                                       DECISION AND ORDER

        The Secretary moved to dismiss the Respondent’s              notice of contest as not being

timely filed under section 10 of the Act. A hearing was held in New York, N.Y. on May 31,

1995 concerning the merits of the motion at which time testimony and evidence were profert

by both parties.
The Respondent was issued a serious citation and notification of proposed penalty on

November 17, 1994 which was received on November 21, 1994. Under section 10(a) of the

Act, 29 U.S.C. 659(a), an employer must notify the Secretary that it intends to contest the

citation or proposed penalty within fifteen working days of its receipt. The Respondent had

until December 14, 1994 to file its notice of contest, but did not do so, instead sending a

letter to the regional office of OSHA dated January 31, 1995 requesting a “post contest

review of the aforementioned citation due to the fact that a new office employee of ours had

misfiled the citation papers in November of 1994 and we were not aware of it until we

received your January 23, 1995 letter regarding payment past due for this citation.”

 Mr. Jasionowski, the Respondent vice-president    admitted the receipt of the citation but

that it had been misfiled by a secretary, and after receipt of the delinquent notice, “ we tore

the office apart. We looked in invoice folders, bills and basically we found it in one of the

folders--.” While I am sympathetic to the plight of the Respondent, it is apparent that there

is present no excusable neglect or mistake under Rule 60(b). What is present is simple

neglect on part of management to provide suitable and correct business procedures for the

receipt of important mail. 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); Woudkburg Dyeing & Finishing Co., 13 BNA OSHC 2058,1987-90 CCH OSHD

par. 28,433 (No. 88-1830, 1989). What is indicated here is simple negligence, slovenly

business practice and lack of diligence in policing good business follow-up. Such condui=t will

not establish grounds for relief. E.K Construction Co., 15 BNA OSHC 1165-6.

The motion to dismiss is GRANTED.
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                                ORDER

 The citation and proposed penalties are AFFIRMED   in all respects.




                                             IRVING SOMMER
                                             Chief Judge

DATED: -BUG- 1 I985
Washington, D.C.