Herzog Food, Inc.

Plain-English summary

Herzog received OSHA's citation and proposed penalty on December 18, 1995, making its notice of contest due January 10, 1996. Its attorney did not send a protest until January 18. Herzog blamed snow emergencies, but the record showed that the owner and insurance representatives received, read, and discussed the documents before the weather disruption. The judge held that overlooking the clear filing instructions and failing to follow sound business procedures did not constitute excusable neglect. The late contest was dismissed, and the citation and proposed penalty became final.

Decision snapshot

• Cited standard(s): The decision does not identify the specific OSHA standard underlying the citation.
• Outcome: The late notice of contest was dismissed, and the citation and proposed penalty were affirmed.
• Key point: A missed contest deadline is not excused when the employer timely receives clear instructions but fails to act through its ordinary business channels.

Full text (OSHRC public release)

                                        United States of America
            OCCUPATIONAL           SAFETY AND HEALTH REVIEW COMMISSION
                                  1120 20th Street, N.W., Ninth Floor
                                     Washington, DC 2003 6-34 19



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

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 964415
HERZOG FOOD, INC.
Respondent.

                           NOTICE OF DOCKETING
                    OF ADMINISTRATIVE MW JUDGE’S DECISION
     The Administrative Law Judge’s Report in the above referenced case was

. - docketed with the Commission on September 26, 1996. The decision of the Judge
will become a final order of the Commission on October 28, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 16 1996 in order to emit su&icient time for its review. See
Commissiok Rule 91, 29 C.F.W. 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, fi.W.
Washington, D.C. 20210
If a Direction for Review is issued bv the Commission. then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review r@ts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: September 26, 1996
DOCKET NO. 96-0415
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia M. Rodenhausen
Re ‘onal Solicitor U.S. DOL
2O?Varick Street,’ Room 707
New York, NY 10014

Jeffrey A. Marshall, Esquire
Marshall, Conway & Wright, P. C.
116 John Street
NW York, NY 10038

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

00106866783 :02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, ..

     Complainant,                          ..

                                           .
            V,                             .       Docket No. 96-0415

HERZOG FOOD, INC., ..

     Respondent.

Appearances:
Luis Micheli, Esq.
Ms. Sabina Rezza, Esq. Robert Conway, Esq.
Regional Solicitor, USDOL Marshall, Conway & Wright, Esq.
New York, N.Y. New York, N.Y.

            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

U.S.C. sec. 65 1-678 (“the Act”), to determine whether the Respondent Herzog Food, Inc.

(“Herzog”) 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’smotion to dismiss the Respondent’s

notice of contest. The Secretary filed a brief following the hearing.
 2

                                     BACKGROUND

 The citation setting forth the alleged violation and the accompanying notification of proposed

penalty was issued by certified mail on December 11, 1995. Herzog received these documents on

December 18, 1995, (ExhC-3,6;Tr.36). Pursuant to section 10(a) ofthe Act, 29 U.S.C. sec. 659(a),

Herzog 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 10,1996. 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 January 18, 1996 counsel for Herzog notified the Department of Labor that

“We are hereby issuing a formal protest to the filing of two violations against us.” (Exh. C-4).

Subsequently, in a letter dated February 21, 1996 counsel informed the Department of Labor that

“Our letter of protest was issued on the nineteenth working day following receipt of the claim. We

note that the City ofNew York had lost four days to snow emergencies. I am a Westchester resident

and lost the entirety of the week of January 15th through the 18th.”

                                       DISCUSSION

    The record here plainly shows that Herzog notified the Secretary of its intent to contest the

citation and proposed penalty after the expiration of the 15 day working period. The issue before this

court is whether that untimely filing may 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 also entitled

to relief under Fed. R. Civ. P. 6O(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)
 3

for such mitigating circumstances as absence, illness, or a disability which prevents the party fi-om

protecting its interests. Here, there is no contention and no showing that the Secretary acted

improperly or that the factors mentioned in Rule 60(b)(6) prevented the required action.

    The cover letter to Herzog’s citation states in emphasized type:

           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 YOUinform the

Area Director in writing that vou intend to contest the citation(s) and or proposed penaltv(ies) within

15 working days after the receipt. the citation(s) and proposed Penltv(ies) will become a final order

of the Occupational Safetv and Health Review Commission and mav not be reviewed by any court

or agencv. This admonition is repeated in the pamphlet enclosed with the citation to the Respondent

which fully explains the employer rights and responsibilities. (Exh. C-2). Thusly, the citation placed

Herzog explicitly on notice that it was obligated to file a notice of contest within 15 working

days of receipt. Roy Kay Inc., 13 BNA OSHC 2021, 1987 CCH OSHD par.28,406 (No.8801748,

1989). The “OSHA 3OOO”booMetalso provides an “additional, straightforward explanation” of the

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

Mr. Mark Witlieb, the corporate owner testified that he received the citation and documents from

OSHA on December 18, 1995 (Tr. 36), read the same (Tr.39) and then “probably on or about that

day” (Tr.37) notified his insurance carrier of said receipt.

Mr. Matthei, the senior claims representative for the insurance carrier testified that the documents

from Herzog was first received by him on December 29,1995 (Tr. 43), but that he had spoken to Mr.

Witlieb and been informed of their existence on December 21. However, this date would appear to
 4

be in error, siice in a letter to the attorney dated January 16. 1996 Matthei makes reference to their

conversation concerning this matter on December 18, 1995 buttressing the statement of Witlieb as

to when he called his insurance company. The Respondent alleges that because of snow emergency

closings on a number of days in January 1996 the contest letter was late. The evidence however,

belies such contention. The corporate owner admitted receipt of the OSHA documents and read

same. His rights and responsibilities were plainly there for him to see and comprehend. He called his

insurance professional on that very day and obviously gave notice of the citation, and forwarded it.

Matthei, the insurance professional called the attorney on December 18, 1995 to alert him., and

testified he received the documents on December 29, 1995, all these dates before the alleged

snowstorm. In short, two people read the documents, which told of the need for filing within 15

working days and took no action. The failure of the corporate owner who received the documents

and who while reading them was careless and overlooked the admonitions given does not give rise

to excusable neglect or any other reason which would allow relief Stroudsburg Dyeing & Finishing

Co., 13 BNA OSHC 2058. .The employers error and neglect of his vital business mail does not give

rise to an excuse sufficient to obtain relief under Rule 60(b). “The excusable neglect standard can

never be met by a showing of inability or refusal to read and comprehend the plain language of the

federal rules.“ Cosmopolitan Aviation Corp., 763 F2d 507, 5 15 (2nd Cir.), cert. den., 474 U.S. 1032.

The Respondent was negligent and did not follow proper business practices in not reading thoroughly

the material sent by OSHA, including both the citation and booklet which outlined his 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, Louisiana PaciJic

Cop., 13 BNA OSHC 2020, nor will negligence establish such rekf rights. E.K. ConsfrUction Co.,
 5

15 BNA OSHC 1165. It is further pertinent that his insurance agent similarly read the documents and

while conversing with the attorney before sending the documents to him, similarly did not act to see

that a timely notice of contest was sent, although there was still time available when he received the

papers. “inadvertence, ignorance of the rules or mistakes construing the rules do not usually

constitute ‘excusable’neglect.”Pioneer Imestment Services Co. v. Brunswick Assoc., 113 S.Ct. 1489,

1496 (1993).

   Respondent is responsible for its failure to carefully read and act upon the unambiguous

instructions. set forth in the documentation accompanying the citation. Acrom Construction Sews.,

Inc. 15 BNA OSHC 1123. The circumstances here are insufkient to establish that Herzog is entitled

to relief under Rule 60(b).

                     ;                    ORDER

    The Secretary’s motion to dismiss is granted, and the citation and notification of proposed

penalty are afEirmed.

                                                   IRVING SOh4MER
                                                   Chief Judge

DATED: SEP 2 0 1996‘
Washington, D.C.