New Jersey Monument Co.

Plain-English summary

New Jersey Monument Co. is a very small company with one shop employee. OSHA
issued it a citation and proposed penalty by certified mail on June 16, 1995,
received June 19, which set a July 11, 1995 deadline to file a written notice
of contest. The company did not file on time. It later wrote to the Commission
in October 1995 asking for review, saying it felt misled by the inspector into
believing it had no power to appeal and had taken his word as law.

Chief Judge Irving Sommer held a hearing on the Secretary's motion to dismiss
and granted it. An untimely contest can be excused only if the delay was caused
by the Secretary's deception or improper procedures, or qualifies as "excusable
neglect" under Federal Rule of Civil Procedure 60(b). The compliance officer
testified he never told the company it could not appeal and had given it the
OSHA 3000 booklet explaining the right to contest, and the company's own
witnesses confirmed on cross-examination that they were told they could contest
the citation. The judge found no deception, only the company's negligence in not
reading the citation and booklet, which does not warrant relief. The citation
and proposed penalty were affirmed.

Decision snapshot

• Cited standard(s): None adjudicated; the case turned on the timeliness of the notice of contest
• Outcome: Late notice of contest dismissed; citation and proposed penalty affirmed by operation of law
• Key point: A subjective impression that an appeal would be futile is not deception; the written citation and OSHA 3000 booklet give adequate notice, and failing to read them is not excusable neglect.

Full text (OSHRC public release)

```text
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. OSHRC DOCKET
NO. 951512
NEW JERSEY MONUMENT COMPANY
l

         Respondent.


                    NOTICE OF DOCKETING
             OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on Marc R 14, 1996. The decision of the Judge
will become a final order of the Commission on April 15, 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 by the Executive Secreta on or before
April 4, 1B96 in order to ermit sufficient time for its review. 3 ee
Commission Rule 91, 29 8 .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: March 14, 1996
DOCKET NO. 951512

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

Anne Marie Saracino, Pro Se
New Jersey Monument Company
470 Belleville Turn ike
North Arlington, N P 07032

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

00114118912:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                           ..

SECRETARY OF LABOR,

   Complainant,                            ..

                                           .
           V.                              .      Docket No. 95-l 5 12

NEW JERSEY MONUMENT CO., :

   Respondent.
                                           .
                                           .

Appearances:
Patricia Rodenhausen, Esq. Ms. Anne Marie Saracino
Ms. Sabina Rezza Owner
Regional Solicitor NJ. Monument Co.
U.S. Department of Labor N. Arlington, N.J. 07032
New York, N.Y.
For the Complainant For the Respondent

Before: Chief Judge Iming Sommer

                                DECISION AND ORDER

   This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970,

29 U .S.C . set .6%678(the Act), to determine whether Respondent, New Jersey Monument Co. 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 the Respondent’s notice of

contest. Neither party filed a brief following the hearing.
 2

                                       BACKGROUND

    The citation setting forth the alleged violations and the accompanying notification of

proposed penalty was issued by certified mail on June 16, 1995 and received by the Respondent on

June 19, 1995. Pursuant to section 10(a) ofthe Act, 29 U.S.C. sec. 6 59(a), Respondent was required

to notify the Secretary of any intent to contest the citation within 15 working days of receipt of the

citation and notification of proposed penalty, or July 11, 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). The Respondent was contacted by the OSHA regional office as to whether the

violations were abated and when asked about the penalties were told they had failed to file a timely

contest and should contact the Review Commission. The Commission received a letter Corn the

Respondent on October 4, 1995 requesting review and stating that “----At this time we feel we were

mislead by the inspector advising us we were in violation and had no appeal power. We have never

had an inspection by OSK4 before as we are a very small company with only one shop employee and

we have an excellent safety record. We took the inspectors word as law.”

                                         DISCUSSION

    Mr. Charles Triscritti the compliance officer who carried out the inspection and issued the

citation testified that he did not state to the Respondent’s representatives at the opening or closing

conference that they had no right to appeal, that they could not win ifthey appealed or that they were

losers. He stated he encourages Respondents to “exercise their rights” and in this instance when the

inspection was over and before the citation was issued he gave the Respondent a copy of the OSHA

3000 booklet which is entitled Employer Rights and Responsibilities Following an OSHA Inspection.
 3

   Mr. Paul Saracino, father of MS Anne Marie Sara&o the company owner testified he was

present at the inspection and received the definite impression from the OSHA inspector that they had

no basis for appeal, and would loose ifthey did appeal. However on cross-examination Mr. Saracino

testified: Q. Did Mr. Triscritti say that you had no appeal rights concerning issuance of the citation?

A. No Q. Okay. Did Mr. Triscritti explain that should a citation be issued, an OSHA booklet 3000

was handed to you and discussed, should a citation be issued, that you had an opportunity to appeal

at that point? A. Yes, I believe so. (Tr 21). Ms. Decaito was present at the inspection and when

asked by Ms. Saracino: Q. Ms. Decaito, on June 8th of 1995, were you at New Jersey Monument

during Mr. Charles Triscritti’s walk-through? A. Yes, I was. Q. And at that time, did he inform you

that you could contest the citations? A. Yes. Q. Okay. Did he imply that legally, yes, you could

contest them, but there was no basis for contestment? A. Yes.

    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 is also entitled to relief under Fed. R.Civ P. 60(b) if it demonstrates that the Commission’s

final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect”. Both

of the Respondent’s witnesses testified that the inspector said they could contest the citations, but

they were of the impression that he said it would be of no use. In the face of the testimony of the

inspector that he did not in any way lead the Respondent to believe they had no appeal rights, which

was corroborated by Respondent’s own witnesses, I conclude from the totality of the evidence that

there was no deception of any sort carried out by the inspector, but perhaps the Respondent in some
 \
4

way erroneously misread or did not listen to the explanation given of their rights. The evidence shows

that at the inspection they were given pamphlet 3000 which fully explains employer rights and

responsibilities. Under the How to Contest section at page 9 of the pamphlet is stated the following:

“---If you wish to contest any portion of your citation, A Notice of Contest must be submitted in

writing within 15 working days tier 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.” This is repeated again in the citation where the following

is stated under the paragraph RIGHT TO CONTEST-You have the right to contest this Citation and

Notification of Penalty. You may contest all citation items or only individual itemsYou may also

contest proposed penalties and/or abatement dates without contesting the underlying violations.

Unless you inform the Area Director in writing that YOUintend to contest the citation(s) and/or

proposed penaltv(ies) within 15 working; davs after receipt. the citation(s) and the proposed

penaltv(ies) will become a final order of the Occupational Safetv and Health Review Commission and

may not be reviewed bv anv court or agency.

    The citation “plainly state(s) the requirement to file a notice of contest within the prescribed

time period.” Roy Kay, 13 BNA OSHC at 2022; Accord Acrom Constr. Services, 15 BNA OSHC

at 1126; FkankIrey, Jr.,Znc. v. ~~HK’, 5 19 F2d 1200, 1206 (3d Cir. 1975) a.fFdon other grounds,

430 U.S. 442( 1977)(the citation adequately instructs on the right of contest and how it is to be done).

The “OSHA 3000” booklet also provides an “additional, straightforward explanation” of the need

for a timely contest. See Keefe Earth Boring Co., 14 BNA OSHC 2187.

    The Respondent was negligent in not reading the material sent by OSHA, including both the

booklet and the citation which outlined its rights and responsibilities. The Commission has held that
employers whose improper business practices and procedures has led to failure to file in a timely

manner are not entitled to relief. See Louisiana-Pacijk Cop., 13 BNA OSHC 2020; Simple

negligence will not establish entitlement to relief. E.K. Construction Co., 15 BNA OSHC 1165,

1166. The evidence of record does not support a finding that the delay in filing was caused by the

“Secretary’s deception or failure to follow proper procedures”. AtlanticMarine, Inc. v. OSAHRC

and Dwkp, 524 F2d 476 (5th Cir. 1975). Accordingly, the motion of the Secretary to dismiss the

notice of contest is GRANTED.

                                        ORDER

   The citation issued to the Respondent on June 16, 1995 and the proposed penalty is

AFFIRMED.

                                                 IRVING SOMI!hER
                                                 Chief Judge

DATED: MA!?1’2 1996
Washington, D.C.
```