Harry Fiocchi & Associates, Inc.

Plain-English summary

Harry Fiocchi & Associates is a New Jersey general construction, design-build,
and project-management firm with about 10 employees. OSHA mailed the company a
citation by certified mail on March 31, 1995, and it was received on April 4,
1995. Under the OSH Act an employer has 15 working days to file a notice of
contest, which made Fiocchi's deadline April 25, 1995. The company did not write
to contest until May 24, 1995, well after the deadline, after its president said
he first learned of the citation from a follow-up OSHA letter.

Fiocchi explained that its executive secretary was on leave and a temporary clerk
had misfiled the citation, so the president never saw it in time. Chief Judge
Irving Sommer treated the late filing as a request for relief under Rule 60(b) of
the Federal Rules of Civil Procedure, which can excuse a missed deadline for
mistake, inadvertence, surprise, or excusable neglect. He held that a breakdown
in the company's own mail-handling procedures is simple negligence, not excusable
neglect, and that an employer whose own faulty procedures cause a late filing is
not entitled to relief. The Secretary's motion to dismiss was granted, and the
citation and proposed penalty were affirmed in all respects.

Decision snapshot

• Cited standard(s): None adjudicated; the case turned on the timeliness of the notice of contest.
• Outcome: Motion to dismiss granted; late notice of contest dismissed; underlying citation and penalty affirmed in all respects.
• Key point: Missing the 15-working-day contest deadline because of a company's own internal mail-handling breakdown is ordinary negligence, which does not excuse the late filing under Rule 60(b).

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. 950977
HARRY FIOCCHI               & ASSOCIATES, 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 February 6, 1996. The decision of the Judge
will become a final order of the Commission on March 7, 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 REVI:EW.
Any such etition should be received by the Executive Secretary on or before
February !?6, 1996 in order to ermit sufficient time for its review. See
Gmmission Rule 91, 29 C.F. IQ. 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. 20036-34 19
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 54004
                              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 Executivk
Secretary or call (202) 606-5400.
                                              FQR THE COMMISSION


Date: February 6, 1996
DOCKET NO. 95-0977
NOTICE IS GIVEN TO THE FOLLOWING:




Patricia Rodenhausen, Esq.
Re ional Solicitor
Ofice of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014



Charles B. Gross
Harry Fiocchi & Associates, Inc.
Lincoln Avenue Business Park
Vineland, NJ 08360



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




 00106749211:02
                                 UNITED STATES OF AMERICA
            OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION




SECRETARY       OF LABOR

       Complainant,

               V.                               .       Docket No. 95-0977

HARRY FIOCCti         AND ASSOCIATES,           ;
  INC.

       Respondent.


APPEARANCES:

       Patricia M. Rodenhausen, Esq.                    Mr. Charles B. Gross
       Regional Solicitor                               Manager of Project Development
       Ms. Sabina Rezza                                 Harry Fiocchi and Associates, Inc.
       Office of the Solicitor                          Vineland, N.J.
       U.S. Department of Labor
       New York, New York

               For the Complainant                              For the Respondent

Before: Chief Judge Irving Sommer


                                     DECISION AND ORDER

       This is a proceeding under section 10(c) of the Occupational     Safety and Health Act of 1970,
29 USC.    sec. 65 1-678 (the Act), to determine whether Respondent,      Harry Fiocchi & Associates,
Inc. (Fiocchi) filed a timely notice of contest of the citation and penalty proposed by the Secretary
for alleged violation of the Act. A hearing was held on the Secretary’s motion to dismiss Fiocchi’s
notice of contest. Neither party filed a brief following the hearing.
                                           BACKGROUND

        The citation setting forth the alleged violations and the accompanying notification     of proposed
penalty was issued by certified mail on March 3 1, 1995 and received by the Respondent           on April 4,
1995. Pursuant to section 10(a) ofthe Act, 29 U.S.C. section 659(a), Fiocchi 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 April 25, 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 dated May 15, 1995, postmarked        on May 18, 1995 and received by the Acting Area
Director of the Occupational Safety and Health Administration     on May 19, 1995, Mi-. Harry Fiocchi,
the president of the Respondent corporation stated that, ” I was not aware that my firm had received
this citation and notification of penalty until I personally received a subsequent letter from you dated
May 11, 1995.“The letter Respondent         refers to was one from OSHA inquiring             as to whether
abatement of the violations found had been carried out. On May 24, 1995 the Respondent            wrote the
Commission to request “an Appeal of the above Citation and Notification      of Penalty--“.     MY. Charles
B. Gross, the manager of project development        for the Respondent    represented   the company and
testified at the hearing that during May of 1995 their executive         secretary was on leave and a
temporary clerk had misfiled the citation and accompanying papers so that Mr. Fiocchi was not aware
of the receipt of same until a later letter from OSHA.(Tr.    15-16)

                                             DISCUSSION

        The record plainly shows that the Respondent     filed an untimely notice of contest.     The issue
before this Court is whether that untimely filing may be excused under 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 us also entitled to relief under Fed. R. Civ. P. 60(b) ifit demonstrates      that the Commission’s
final order was entered as a result of “mistake,      inadvertence,    surprise, or excusable neglect” for fur
such mitigating       circumstances   as absence, illness, or a disability which prevents the party from
protecting      its interests. Brancz$!rth Builders, Inc., 9 BNA OSHC 2113, 1981 CCH OSHD par.
25,591 (No. 800192OJ981).

            The record shows that the Respondent        has been in the business of general construction,
design,      build and project management       for “somewhere        15 to 20 years.” There are about      10
employees, consisting of secretarial and professional staffers.

            The failure of Mr. Fiocchi to receive the citations is attributable solely to a breakdown   of his
business procedures.        The evidence does not establish excusable neglect or mistake under Rule
60(b)(l).     What is indicated here is negligence of company personnel and failure of the company
president to set procedures which provide that important governmental           mail is promptly opened and
replied to. 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; Strouburg           Dyeing &Finishing Co., 13 BNA OSHC 2058. Simple negligence will not
establish entitlement to relief. E’JC construction co., 15 BNA OSHC 1165, 1166.

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

                                              ORDER

         The citation   issued to the Respondent   on March 3 1, 1995 and the proposed   penalty is
AFFIRMED in all respects.




                                               Chief Judge
DATED:           FEf3z6 1996
                Washington, D.C.


                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


SECRETARY OF LABOR

                        Complainant

                 v.                                         ..     Docket No.     95-0977

HARRY FIOCCHI AND ASSOCIATES, INC.,

                        Respondent


                             ORDER CERTIFYING RECORD

       Consistent with 5 U.S.C. Section 556(e), the undersigned hereby certifies that the
record in this proceeding consists of the following:

       1.        All documents forwarded to the undersigned by assignment dated
August 18, 1995, numbered ES-1 through ES-7, and CJ-8 through -CJ-10;

       2.        All documents filed with and issued by the undersigned numbered J-11
through J- 19;

       3.        An original of the official transcript of the hearing held November 29,
1995, consisting of 23 pages;

       4.        Exhibits C-l through C-6; are admitted into evidence and;

       5.        The undersigned’s Decision and Order in this matter.




DATED:           February 6, 1996
                 Washington, D . C .