Pullini Water Main & Sewer Contract
Late notice of contest dismissed
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA sent Pullini Water Main & Sewer Contractors serious and repeated citations by certified mail. The company received them on March 23, 1992, making April 13 the deadline to contest. Its attorney did not send a notice of contest until May 12. The judge found that the delay resulted from the company's own handling of its mail and business affairs, not deception by OSHA or grounds for relief from the deadline. The late notice was dismissed, leaving the citations and proposed penalties affirmed in all respects.
Decision snapshot
- Cited standard(s): None specified in the decision
- Outcome: Late notice of contest dismissed; citations and proposed penalties left as final orders
- Key point: Internal delay in routing certified mail did not excuse missing the statutory 15-working-day contest period.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREiT NW
4TH FLOOR
WASHINGTON, DC 20006-l 246
FAX
COM (202) 634-4008
F-6 (202) 634-4008
SECRETARY OF LABOR
Complainant,
v. I OSHRC DOCKET
NO. 92-1913
PULLJNI WATER MAIN & SEWER CONTRACT
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 24, 1993. The decision of the Judge
will become a final order of the Commission on April 23, 1993 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 Secretary on or before-
April. 13, P993 in order to ermit sufficrent time for its review. See .
Commission Rule 91, 29 cp.F.R. 2200.91. -
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Offke of the Solicitor, U.S. DO5
Room WI04
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 rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
Date: March 24, 1993
DOCKET NO. 92-1913
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mid, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%‘citor, U.S. DOLiL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 7O?
New York, NY 10014
Blaise F. Parascandola, Esquire
Pullini Water Main & Sewer
Contractors, Inc.
356 Fulton Street, 3rd Fl.
Brooklyn, NY 11201
Irvin Sommer
Chie f Administrative LAWJudge
Occupational Safety and Health
Review Commission
Room 4 17/A
1825 K Street, N.W.
Washington, DC 20006 1246
00106752470:02
/H-- .
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
I
t 4TH FLOOR
WASHINGTON DC 20006-1246
FAX:
COM (202) 6344008
FE 634408
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 924913
.
PULLINI WATER MAIN & SEWER I
..
..
Respondent. ..
..
..
Appearances:
..
&her D. Curtwright, Esq. Blaise F. Parascandola, Esq.
U.S. Department of Labor 356 Fulton Street, 3rd FL
New York, New York Brooklyn, New York
For the Complainant For the Respondent
Before: Administrative Law Judge Irving Sommer ..
DECISION AND ORDER
Respondent was issued a serious citation and a repeat citation on March 18, 1992.
A hearing was held in New York, New York on October 22, 1992, concerning the Secretary
of Labor’s motion to dismiss the Respondent’s notice of contest as not being timely filed.
Diana Cortez, a safety supervisor in the Bayside, New York area office of OSHA
testified that the office records which are kept in the regular course of business in said office
reveal that the citations were sent to the Respondent on March 19, 1992, by certified mail,
return receipt requested. Further, a green card evidencing their receipt by Respondent on
March 23, 1992, was returned to said office on March 25, 1992 (transcript, p.9,10).
Under section lo(a) of the OSH Act, 29 U.S.C. section 659(a), an employer must
notify the Secretary that it intends to contest the citation or the proposed penalties within
meen (15) working days of their receipt. If no such.notice is received within such time, the
citations and penalties shall be deemed a final order of the Commission and not subject to
rmiew by any court or agency. The Respondent in this case had until April 13,1992, to fiie
its notice of contest timely. However, the official case record reveals that Respondent did
not contest these citations until its attorney, Mr. Parascandola, sent a notice of contest letter
to the Bayside, New York area office of OSHA dated May 12, 1992, and received by that
office on May 14,1992. Since Respondent’s notice of contest letter was received beyond the
15 working day contest period, the Bayside area office notified Mr. Parascandola by letter
dated May 22, 1992, that they declined to accept his letter as it was an untimely filed notice
of contest regarding this matter. Subsequently, by letter dated July 1, 1992, Mr. Parascand-
ala appealed to the Executive Secretary of the Occupational Safety and Health Review
Commission to accept his notice of contest of the citations which were previously disallowed
as untimely filed by the Bayside OSHA area off&. The matter is
now before the undersigned for a decision solely on the issue of the timeliness of the
Respondent’s notice of contest.
DISCUSSION
A careful analysis of the evidence and of the testimony of the witnesses for each party
compel the conclusion that the Respondent received the citations on March 23, 1992.
Pursuant to section 10(a) of the OSH Act, the company had 15 working days within which
to contest these citations, or more specifically in this case a notice of contest had to be
received by the OSHA area office on or before April 13, 1992 (transcript, p.14). At the
hearing, Respondent’s secretary admits (despite protestations that the certified mail package
lacked a certified sticker and that the certified card was minus an article number f’llled-in on
the card) that her signature appears on the green certified return receipt card, which reflects
that she received the package containing the citations on behalf of the Respondent on
March 23, 1992 (transcript, p. 43).
m
3-
Respondent’s president, Mr. Pullini, admits that though he had developed a practice for his
employeesto follow regarding the handling of certified mail, “ ... sometimes it may go a little
astray because of other interferences we may have at times” (transcript, p. 31). In addition,
Mr. Pullini notes on page 32 of the transcript, in response to a question from his attorney
regarding when he actually reviewed the citations received in his office on March 23, 1992,
that “To the best of my recollection it might have been barring holidays and weekends it
might have been a week later where I really got into the grit of it”. Further, Mr. Pullini, in
response to questions from the Secretary’s counsel notes that he read at least the first page
of the citations received and instructed his employee to forward the citations to his attorney,
Mr. Parascandola, within about a week of their receipt “more or less, give or take”
(transcript, p. 39, p. 40). Subsequently, Respondent’s attorney sent a notice of contest letter
to the Bayside, New York area office of OSHA dated May 12, 1992, and received by that
office on May 14, 1992.
The weight of the credible testimony and evidence in this case leads to the
inescapable conclusion that the Respondent did not file a notice of contest within the time
period required under section 10(a) of the Act. His failure to do so was due solely to his
own neglect and negligence in carrying out his business affairs. The citations he received
plainly advised him of the requirement to file a notice of contest within the
prescribed time. There is no evidence that the Respondent’s failure to f!ile a iimely
notice of contest was caused by any deception by the Secretary of Labor. Further,
Respondent has not provided sufficient evidence that he is entitled to any relief under Rule
60(b) of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
10 Citations were issued to the Respondent on March 18, 1992.
2 l The citations were received by the Respondent on March 23, 1992.
3 l The fifteen working day period during which the notice of contest was required
to be filed ended no later than April 13, 1992.
4 l The Respondent did not file a notice of contest until May 12, 1992.
* 4-
50 The Respondent did not file a notice of contest within the fifteen working day
period after receipt of the citations.
6. The late filing was due to the negligence of the Respondent in the disposition
of the citations.
CONCLUSION OF LAW
The Respondent’s notice of contest was untimely filed and is DISMISSED.
ORDER
The citations and proposed penalties are AFFIRMED in all respects.
. IRVING SOMMER
Judge
DATED; 3
HAR 2 1993
Washington, D.C.
Get today's answer for your situation
You just read what one judge decided for one employer in 1993, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.