Dandee Creations, Ltd.

Plain-English summary

Dandee Creations is a New York company that received an OSHA citation issued
December 15, 1994 and delivered by certified mail on January 5, 1995. Under the
OSH Act an employer has 15 working days to file a notice of contest, so Dandee's
deadline was January 27, 1995. On January 30, 1995 the company sent OSHA a letter
listing the violations it had corrected, and it later explained the delay by
saying the secretary who typed its mail had been out sick.

Chief Judge Irving Sommer granted the Secretary's motion to dismiss on two
independent grounds. First, the January 30 letter was not a notice of contest at
all; it only told OSHA the violations had been fixed, and the company president
confirmed at the hearing that the letter's purpose was to report abatement, not to
challenge the citation. Second, even if the letter were treated as a notice of
contest, it was filed after the deadline, and a company that lacks orderly
procedures for handling important government mail during an employee's illness has
shown only simple negligence, which does not qualify for relief under Rule 60(b).
The citation and proposed penalty were affirmed.

Decision snapshot

• Cited standard(s): None adjudicated; the case turned on whether a valid, timely notice of contest was filed.
• Outcome: Motion to dismiss granted; the January 30 letter was not a notice of contest and any contest was untimely; underlying citation and penalty affirmed.
• Key point: A letter that only reports the violations have been corrected is not a notice of contest, and missing the 15-working-day deadline because of an employee's illness and disorganized mail handling is simple negligence, which does not excuse a late filing.

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) 606-5 100
SECRETARY OF LABOR                                   Fax: (202) 606-5050
                          Complainant,
              v.                                                       OSHRC DOCKET
                                                                       NO. 95-0429
DANDEE CREATIONS, LTD.
                           Respondent.


                                NOTICE OF DOCKETING
                      OF ADMINISTRATIVE          LAW JUDGES          DECISION
     The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 19, 1996. The decision of the Judge
will become a final order of the Commission on February 20, 1996 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
February f 1996 in order to ermit su ii icient time for its review. See
Commissiok Rule 91, 29 C.F. k . 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, DC 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. DOH.
                              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 19, 1996
DOCKET NO. 95-0429
NOTICE IS GIVEN TO THE FOLLOWING:



Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 7O’f
New York, NY 10014



Kenneth A. Bloom, Es uire
Gartner & Bloom, P. 2 .
885 Second Avenue
New York, NY 10017



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




00109048496 : 02
                                           United States of America
                      OCCUPATIONAL      SAFETY AND HEALTH REVIEW COMMISSION
                                      1120 20th Street, N. W., Ninth Floor
                                \
                                         Washington, DC 20036-34 19


Phone:(202)606-5405                                                          Fax:(202)606-5409



   SECRETARY OF LABOR

           Complainant,

                  V.                              .      Docket No. 95-429

   DANDEE CREATIONS,          LTD.,

          Respondent.



   Appearances:
   Luis A. Micheli, Esq.
   Ms. Sabina Rezza
   U.S. Department of Labor
   New York, N.Y.
           For the Complainant

   Kenneth A. Bloom, Esq.
   Gartner & Bloom, PC.
   New York, N.Y.
          For the Respondent

   Before: Chief Judge Irving Sommer

                                         DECISION AND ORDER

          This is a proceeding under section 10(c) of the Occupational   Safety anci Health Act of 1970,
   29 U.S.C. section 65 l-678 (the Act), to determine    whether Respondent,    Dandee Creations, Ltd.
   (Dandee) filed a timely notice of contest of the citation and penalties proposed by the Secretary for
   alleged violations of the Act. A hearing was held in New York, N.Y. on the Secretary’s motion to
   dismiss Dandee’s notice of contest.
                                                   2

                                          BACKGROUND

       The citation setting forth the alleged violations and the accompanying notification of proposed
penalty was issued on December 15, 1994 and were posted by certified mail to the Respondent on
January 3, 1995 (date U.S. Post office received documents). Tr. 17. Initially, in its motion to dismiss
the Secretary alleged that the Respondent received the citation and proposed penalties and the.\
accompanying instructions on January $1995 which date was revised during the trial and in the post
hearing brief to January 5, 1995. Pursuant to section 10(a) of the Act, 29 U.S.C. section 659(a),
Dandee was required to notify the Secretary of any intent to contest within 15 working days of
receipt of the citation and notification of proposed penalty, or January 27,1995. In the absence of
a timely contest, the citation and proposed penalty would be deemed a final judgment of the
Commission by operation of law. Section 10(a).

        In a letter to the Occupational Safety and Health Administration dated January 30, 1995
Dandee filed a list of corrected violations.

                                               DISCUSSION

        Section 10(a) of the Act, in pertinent part, provides:

        If, after an inspection or investigation, the Secretary issues a citation under Section 9(a), he
shall, within a reasonable time after the termination of such inspection or investigation, notify the
employer by certified mail of the penalty, if any, proposed to be assessed under Section 17 and that
the employer has fifteen working days within which to notify the Secretary that he wishes to contest
the citation or proposed assessment of penalty.

        This is more starkly brought out in the cover letter which the Secretary sent to Dandee in
finding certain violations present after the inspection and stating the amount of the alleged penalties
due. Such cover letter states in emphasized type:
                                                   3

       RIGHT TO CONTEST- You have the right to contest this Citation and Notification of
Penalty. You may contest all citation items or only individual items. You may also contest proposed
penalties and/or abatement dates without contesting the underlying violations. Unless you inform the
Area Director in writing that you intend to contest the citation(s) and/or proposed penalty(ies) within
15 working days after receipt, the citation(s) and proposed penalty(ies)     will become a final order of
the Occupational Safety and Health Review Commission and may not be reviewed by any court or
agency. (Emphasis in original). Dandee was further notified on the specific method of contesting the
citations and or penalty in a booklet entitled “Employer Rights and Responsibilities Following an
OSHA Inspection” which accompanied the mailing of the notification the citation and notification of
penalty. Pages 10 and 11 of said booklet completely outline the procedure for contesting the citations
and penalty alleged.

        The questions presented are as follows: (1) Did Dandee’s letter dated January 30, 1995
constitute a notice of contest of the citations, or of the proposed penalty, or both? (2) If so, was the
notice of contest filed in a timely manner and (3) If the letter was a valid notice of contest, but filed
untimely, may such untimely filing be excused in the circumstances. An otherwise untimely notice of
contest may be accepted where the delay in filing was caused by deception on the part of the
Secretary or by failure of the Secretary to follow proper procedures. An employer is entitled to relief
under Fed. R Civ. P. 60(b)(1) if it demonstrates that the Commission’s final order was entered as a
result of “mistake, inadvertence, surprise, or excusable neglect” or under Rule 60(b)(6) for such
mitigating circumstances as absence, illness, or a disability which prevents the party from protecting
its interests. Branciforte Builders, Inc., 9 BNA OSHC 2113, 1981 CCH OSHD Par. 25,591
(No. 80-4920, 1981).
                                                   4

       The record in this case fully demonstrates that Dandee’s letter dated January 30, 1995,
(Exh. C-4) was in no way a notice of contest to either the citations and/or penalties. It was merely a
notification to OSHA that the alleged violations had been corrected. The president of Dandee aptly
stated the purpose of his letter when in response to the question “---Did you respond to the
correspondence that you received from the Occupational Safety and Health Administration? stated,
“Yes. We responded, stating we took care of all the violations.” (Tr. 28). This is further corroborated
in the letter dated March 13, 1995 when in explaining the lateness of responding to the citations etc..
Mr. Palchik states that the typist was sick and that “as soon as she returned on January 30, 1995, we
wrote the letter explaining that we took care of all the complaints. (emphasis added).

        A careful reading and scrutiny of all the evidence of record leads to the ultimate conclusion
that there was no valid notice of contest filed.

        Going one step further, as to the second question whether if one accepts the January 30, 1995
letter as a valid notice of contest, was it filed in a timely manner. Hereto, the answer must be in the
negative. The president of Dandee admitted that the citations and notification of penalty was received
on January 5, 1995. Dandee’s president Mr. Palchik in response to his attorneys questions as to when
the citations and proposed penalties package was received by them responded as follows: Q. Do you
recall a specific date, in January? A. I guess the first week in January. January 5. (Tr. 26). His sworn
affidavit dated June 2, 1995 again reiterates this same date (Exh. R-l). Dandee had explicit notice
that it was obligated to file a notice of contest within fifteen working days of receipt of the citations
and notification of penalty, and the last date for a valid filing was January 27, 1995.

Here, there is nothing to demonstrate that the Secretary acted improperly or that the factors
mentioned in Rule 60(b)(6) are present. As the Commission has previously observed, ” a business
must maintain orderly procedures for handling important documents.” Louisiana-Pacific Corp., 13
                                                     5



BNA OSHC 2020, 2021, 1987-90 CCH OSHD, par. 28,409, p. 37,537 (No. 86-1266, 1989). Rule
60(b)(1) requires a showing of ” excusable” neglect rather than mere negligence or carelessness. It
is apparent that the letter dated January 30, 1995 which if accepted as a notice of contest was
belatedly filed because as Mr. Palchik states in his March 13 letter, “Please be advised that we
answered the complaint a few days later as our secretary who types was sick. As soon as she
returned on January 30, 1995, we wrote the letter explaining that we took care of all the complaints.”
What is present here is a company conducting a going business with no proper procedures for
responding to important business and government mail during the illness of an employee. In short,
the untimely letter was a result of simple negligence and that brings no entitlement to relief E.K.
Construction Co., 15 BNA OSHC 1165, 1166; Rebco Steel Corp., 8 BNA OSHC 1235. While I am
not unsympathetic to Dandee’s situation, the totality of the evidence here is insufficient to establish
it is entitled to relief

                                               FINDINGS

         1.       The evidence of record fails to establish that the letter from Dandee to the U.S.,
Department of Labor dated January 30, 1995 constituted a notice of contest of either the citations
and/or the proposed penalties.

         2.       If said filing was construed as a valid notice of contest, it was untimely filed and not
in compliance with Section 10(a) of the Act, 29 U.S.C. 659(a).

         3.       The Respondent is not entitled to relief from such late filing under any section of Fed.
R. Civ. P. 60.
                                                 6

                                         CONCLUSION

      The Secretary’s motion to dismiss is granted, and the citations and notification   of proposed
penalty are AFFIRMED.


                                                     IRVINGSi%bER
                                                     Chief Judge
DATED:        -%!A8 16’   199s7
              Washington,   D.C.