Trend-Line Furniture Corporation

Plain-English summary

Trend-Line Furniture Corporation makes dining room furniture in Bay Shore, New York, with about eight workers in the plant and two clerical employees in the office. OSHA inspected the plant on August 9, 1994 and issued citations. A follow-up inspection on November 8, 1994 found that the earlier violations had not been abated, so on January 4, 1995 OSHA issued failure-to-abate citations and proposed penalties, which the company received on January 6, 1995. The company did not file a written notice of contest within the 15 working days the law allows, which ran to January 30, 1995; it first responded only after a March 1, 1995 letter demanding payment. The Secretary moved to dismiss the late notice of contest. Chief Judge Irving Sommer found that the citation plainly stated the deadline and that the company president's failure to read and act on important government mail was neglect and poor business practice, not the "excusable neglect" needed for relief under Rule 60(b)(1). The judge granted the motion to dismiss and affirmed the failure-to-abate citations and the proposed penalty.

Decision snapshot

• Cited standard(s): None enumerated; the decision turns on the timeliness of the notice of contest under section 10(a) of the Act (29 U.S.C. § 659(a)) and relief under Fed. R. Civ. P. 60(b)(1).
• Outcome: Procedural. The untimely notice of contest was dismissed and the failure-to-abate citations and proposed penalty were affirmed.
• Key point: An employer whose own poor mail-handling procedures cause it to miss the 15-working-day deadline shows simple negligence, not excusable neglect, so its late notice of contest cannot be excused.

Full text (OSHRC public release)

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

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

SECRETARY OF LABOR,
    Complainant,

    v.

TREND-LINE FURNITURE,
    Respondent.

OSHRC DOCKET NO. 95-0631

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 September 20, 1995. The decision of the Judge will become a final order of the Commission on October 20, 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 by the Executive Secretary on or before October 10, 1995 in order to permit sufficient 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 Litigation
    Office of the Solicitor, U.S. DOL
    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 having questions about review rights may contact the Commission's Executive Secretary or call (202) 606-5400.

Date: September 20, 1995

DOCKET NO. 95-0631
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq., Regional Solicitor, Office of the Solicitor U.S. DOL, 201 Varick, Room 707, New York, NY 10014

Barry Sussman, President, Trend-Line Furniture Corp., 35 Drexel Drive, Bay Shore, NY 11706

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

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

SECRETARY OF LABOR,
    Complainant,

    v.

TREND-LINE FURNITURE, CORPORATION,
    Respondent.

Docket No. 95-0631

Appearances:

Luis Micheli, Esq., Ms. Sabina Reza, For the Secretary

Barry Sussman, President, Trend-Line Furniture Corp., For the Respondent

BEFORE: Chief Judge Irving Sommer

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 August 9, 1995 concerning the merits of the motion at which time testimony and evidence were proffered by both parties.

The Respondent was inspected on August 9, 1994 at which time citations were issued concerning alleged violations. A follow up inspection was held on November 8, 1994 at which time the compliance officer found previous violations had not been abated. Accordingly, on January 4, 1995 citations and proposed penalties for the failure to abate were issued to the Respondent which were received on January 6, 1995. 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 January 30, 1995 to file its notice of contest, but did not do so, instead responding to a March 1, 1995 dunning letter requesting payment with a letter dated March 20, 1995 stating it had forwarded information on November 14, 1995 regarding abatement, and furthermore noting that its financial condition made it unable to afford "those huge, fines."

Mr. Barry Sussman, President of the corporation testified that they are in the business of making dining room furniture; he admitted knowledge of the original inspection and of the re-inspection and had received notice of the failure to abate citation. The corporation has a total of eight people in the plant, with two employees in the office doing clerical jobs. His main allegation is that he believed all violations had been abated and was not able to contact OSHA with this information until November 15, 1994, after the follow up inspection which at that time according to the compliance officer the violations were still in existence. The record plainly shows that the respondent filed an untimely notice of contest herein. The issue is whether said filing may be excused in the circumstances. The citation "plainly state(s) the requirement to file a notice of contest within the prescribed time period." Roy Kay, 13 BNA OSHC 2021, 2022, 1987-90 CCH OSHD, par. 28,406 No. 88-1748 1989. Accord Acrom Construction Services, 15 BNA OSHC 1123, 1126, 1991 CCH OSHD, par 29,393 (88-2229, 1991). The evidence does not establish excusable neglect or mistake under Rule 60(b)(1). What is indicated here is neglect and poor business practices on the part of the respondent. There are two employees working as clericals whose duties encompass, among others, of receiving the mail and forwarding it to those in control, and in this situation, to Mr. Sussman. He also had a responsibility as the president to follow up on important mail such as the citation received from a government source. This was neglected and the resultant failure to file in a timely manner. The Commission has held that employers whose improper business procedures has led to failure to file in a timely manner are not entitled to relief. See Louisiana-Pacific Corp., 13 BNA OSHC 2020; Stroudsburg Dyeing & Finishing Co. 13 BNA OSHC 2058. The office procedures of the respondent, a going business with plant and clerical employees should provide for reliable, continuous mail scrutiny. Simple negligence will not provide entitlement to relief. 15 BNA 1165, 1166.

While I am not unsympathetic to the respondent's plight, I have no alternative but to hold it responsible for its failure to carefully read and act upon the unambiguous instructions set forth in the documentation and other papers accompanying the citation.

The Secretary's motion to dismiss is granted, and the citations for failure to abate and the notification of proposed penalty are AFFIRMED.

IRVING SOMMER
Chief Judge

DATED: SEP 19 1995
Washington, D.C.