RCS Rizzoli Corp. of N.Y.

Plain-English summary

OSHA personally served a serious citation and penalty notice on the manager of an RCS Rizzoli bookstore. The company did not file its notice of contest within the required 15 working days because its operations manager failed to forward the citation to counsel before leaving on a business trip. The judge held that service at the inspected store was reasonably calculated to give the employer notice and was valid. He also found simple carelessness rather than excusable neglect under Federal Rule of Civil Procedure 60(b). The late contest was dismissed, leaving the citation and proposed penalties affirmed in full.

Decision snapshot

• Cited standard(s): Not identified in the decision
• Outcome: The Secretary's motion to dismiss the late contest was granted, and the citation and proposed penalties remained affirmed.
• Key point: A manager's failure to forward a properly served citation to counsel was simple negligence and did not justify relief from the 15-working-day contest deadline.

Full text (OSHRC public release)

UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1 I 20 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE: =Ax:
COM (202)6064100 c0M'202)606-5050
fTs(202)60&5100 ms (202)6OC5050

          SECRETARY        OF LABOR
                             Complainant,
                    v.                                                     OSHRC DOCKET
                                                                           NO. 92-3658
          RCS RIZZOLI      CORP. OF N.Y.
                             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 September 16, 1993. The decision of the Judge
          will become a final order of the Commission on October 18, 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 petition should be received b the Executive Secretary on or before
          October 6, 1993 in order to emit sufi cient time for its review. See
          Commission Rule 91, 29 C. Ep.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. 20036-34 19
           Petitioning parties shall also mail a copy to:
                                  Daniel J. Mick, Esq.
                                  Counsel for Regional Trial Liti ation
                                  Office of the Solicitor, U.S. DO$L
                                  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
           havmg questions about review rights may contact the Commission’s Executive
           Secretary or call (202) 606-5400.

                                                  FOR THE CO-SION                                       /

DOCKET NO. 92-3658
NOTICE IS GIVEN TO THE FOLLOWING:


Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004

. 200 Constitution Ave., N.W.
Washington, DC. 20210

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


Jesse Alan E stein, Esq.
Weisman, CePler, Spett & Modlin
445 Park Avenue
New York, NY 10022


Irvin Sommer
Chie P Administrative Law Jud e
Occupational Safety and Healt ?I
  Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419


00100486430:02

      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                    One Lafayette Centre
                              1120 20th Street, N.W. - 9th Floor
                                 Washington, DC 20036-3419


                                                                                       FAX.
                                                                                       COM (202)6064050
                                                                                       ns(202)606-5050


                                             ..

SECRETARY OF LABOR, ..

      Complainant,

             v.                                      Docket No. 92-3658
                                             ..

RCS RIZZOLI CORP. N.Y., ..

      Respondent.

                                             .

Appearances:

      Luis A Micheli, Esq.                        Jesse Alan Epstein
             U.S. Department of Labor                        Weismaa, Celler, Spett & Modlin
             201 Varick Street                               445 Park Avenue
             New York, New York 10014                        New York, New York 10022

                      For Complainant                               For Respondent

Before: Administrative Law Judge Irving Sommer

      Respondent     was issued a serious citation    and a notification   of penalty on October

19, 1992. A hearing was held in New York, New York on March 26, 1993, concerning the
motion of the Secretary dated January 22, 1993, to dismiss the Respondent’s notice of
contest as not being timely filed under Section 10 of the Act.
On October 19, 1992, a serious citation and notification of penalty was issued to RCS
Rizzoli Corp. of New York (Rizzoli) and was personally served on Tom Dutcher, manager
of the Rizzoli bookstore that day. Mr. Dutcher delivered the citation to Ms. Eugenia

Pakalik, the operations manager of Rizzoli on October 20, 19%. Under Section lo(a) of the
Occupational Safety and Health Act of 1970, 29 U.K. 659(a), an employer must notify the
Secretary that it intends to contest the citation or proposed penalty within fifteen (15)
working days of its receipt. Unless the employer notifies the Secretary within that time, the
citation is “deemed a final order of the commission and not subject to review by any court
or agency.” The Respondent had until November 10, 1992, to file its notice of contest, but
did not do so, fling a letter dated November 30, 1992 requesting permission to file a late
notice citing various reasons therefor.
It is abundantly clear and is admitted that Rizzoli did not file a timely notice of
contest. The letter from Respondent’s attorney dated November 30, 1992 states, ‘The
reason why a contest was not filed within the U-day period is that the violations were
forwarded by our client to us by mail but were not received by us. At some point when our
client realized that it had not heard from us, our client forwarded another copy of the
violations to us. However, by then, the 15day period had expired. Accordingly, it is
respectfully requested that a late contest be permitted.”
At the hearing the Secretary established that the citation was issued on October 19,
1992 and served on the manager of the Rizzoli bookstore, Tom Dutcher the same day. Ms.
Pakalik, Rizzoli’s operations manager testified that she received the citation from Dutcher
on October 20, 1992, and after reviewing it called the corporate attorneys and advised them
of its receipt. Pakalik stated that thereafter she left the city on corporate business, and
realized later on that the attorneys had not been heard from on this matter. Further inquiry
by her resulted in the finding that the attorneys had not received the citation, and it was
forward to them after the lapse of the 15 day period, resulting in the late filing of the notice
of contest.
ResDondent’s Arguments
Respondent argues that the service of the citation was improper, and therefore the
time to file the notice of contest had not expired. The record shows that the citation was
served on Dutcher, the manager of the Rizzoli bookstore located on the premises of the
Bloomingdale’s department store. He in turn delivered it to Pitakis, the operations manager
who “read over the documents” and contacted the law firm. Counsel for the Respondent

                                            2

relyingon gwk@ & Co. v.Secretary of Labor, 507 F&i 78 (2 OS-IC 1432)(3 Cir, 1975) states
the service on Dutcher and Pitakis was improper since it was not served to an official at the
coprate headquarters, but on a manager at the worksite. The Commission has declined
to follow the 3d Circuit’s reasoning, and adheres to the principal stated in B..L Hughes, Inc.,
7 BNA OSHC 1471, 1474, 1979 CCH OSHD par. 23,675 (No. 76-2165. 1979) “that the test
to be applied in determining whether service is proper is whether the service is reasonably
calculated to provide an employer with knowledge of the citation and notification of
proposed penalty and an opportunity to determine whether to abate or contest. ‘Ihis
approach is consistent with the test applied by courts in general when determining sufficiency
of service in other areas of law.” (Cases cited).
In this case, the service was made on the manager of the store where the alleged
violations took place, and who was present at the inspection. The manager in turn knew to
deliver the citation to the Rizzoli operations manager, a responslible position in the
organization. Petakis, the operations manager perused the document, realized its
importance and immediately called company counsel. Unquestionably, service. on Dutcher
was reasonably calculated to provide the employer with the “requisite notice of the pending
citation(s), and the need to proceed.” Thusly, setice herein was valid service on the
Respondent.
The Respondent’s argument that the service of the citation is void since the incorrect
party Respondent is named (RCS Rizzoli NY instead of Rizzoli International Bookstores,
Inc.) is without merit. The setice was made on one with sufficient authority to act for the
Respondent, and one reasonably expected to notify management of the pending citation.
The evidence shows this was done by Ms. Petal&, although negligently. ..
Respondent further requests relief under Rule 60(b) of the Fed R. Civ. Pr. which
provides in relevant part that “(o)n motion and upon such terms as are just, the Court may
relieve a party or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect.” The reason
advanced for failure to file in a timely fashion was that the citation was tardily received from
the client, i.e., counsel’s letter of the 30th of November, 1992 states the violations were
forwarded to them by mail and not received, and when their absence was noted, another

COPY was   sent.   me    testimony    of MS Petakis demonstrates   she received the citation on
October 20, called counsel to alert them, and then left town for a California business trip
forgetting to forward the citation, and did not realize it until at least two weeks later (around
the 17th of November), at which time the fifteen day period was passed. Counsel responded
by letter dated November 30 asking for approval of a late contest fling.
       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. 8&1748,1989). ACCOI$Acrom Consrnrction Services, 15 BNA OSHC 1123,
1126, 1991 CCH OSHD par. 29,393 (No. 88-2291, 1991). The evidence does not establish
excusable neglect or mistake under Rule 60 (b)(l). What is indicated is simple negligence
on Respondent’s part; Ms. Petakis left on a business trip and did not carry dut her proper
responsibility to forward the citation to counsel although recognizing its importance after

. reading same, and only came to recognize the error when the time to file had lapsed. The
failure of the respondent’s operations manager who received the citation, was aware of its
contents to properly forward it to counsel was pure carelessness and negligence, and did not
constitute “excusable neglect” or “any other reason for justifying relief” under Rule 60 @)( 1).
Simple negligence will not establish entitlement to relief. E.K Constructid Co., 15 BNA
OSHC 1165, 1166,199l CCH OSHD par. 29,412 (No. 90-2460, 1991); Rebco Steel Cop., 8
BNA OSHC 1235, 1980 OSHD par. 24,334 (Nos. 77-2040 & 77-2947, 1980).
Accordingly, the motion of the Secretary to dismiss is granted.

       The citation issued to the Respondent on October 19, 1992,nand proposed penalties
is AFFIRMED        in all respects.


                                                      IRVING SO&U&R
                                                      Judge

DATED:             %p   - ?   493
               Washington, D.C.