Mannkraft Corporation
Late-contest dismissal vacated for factual inquiry
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
The chief administrative law judge dismissed Mannkraft Corporation's notice of contest as untimely. Mannkraft's operations manager told the Commission that the citation had been addressed to a person who no longer worked for the company and that bankruptcy-related management changes and an intervening holiday caused the delay. The Commission found that those allegations might establish excusable neglect under Federal Rule of Civil Procedure 60(b)(1) or faulty service under the Occupational Safety and Health Act. Because the record was insufficient to decide those questions, it vacated the dismissal and remanded for affidavits or other proceedings so Mannkraft could present proof.
Decision snapshot
- Cited standard(s): Not identified in the decision
- Outcome: The late-contest dismissal was vacated, and the case was remanded for development of an evidentiary record.
- Key point: Claims of faulty service and a management transition may justify reinstating a late contest, but the employer must have an opportunity to prove the circumstances.
Full text (OSHRC public release)
OCCUPATIONAL SAF&ii%itiEkiiiiii:c~E”lEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
.
zi (202) 6o64050
Rs (202) 0oG5oso
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. : OSHRC Docket No. 93-0304
..
MANNKRAFI’ CORPORATION,
Respondent.
REMAND ORDER
BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
By letter of May 11, 1993, Mannkraft Corporation’s Operations Manager, William
Koines, acting pro se, requested relief from an order of the Chief Administrative Law Judge
dismissing Man&raft’s notice of contest as untimely filed. In his letter, Koines suggests that
the citation was addressed to someone who no longer worked at the company and that the
delay in filing a notice of contest was attributable to a bankruptcy-related management
transition and intervening holiday. The circumstances alleged by Koines’ letter may .
represent excusable neglect pursuant to Federal Rule of Civil Procedure 60(b)(l) or faulty
service under section 10(a) of the Occupational Safety and Health Act, either of which might
support a reinstatement of Mannkraft’s notice of contest. However, the Commission has not
been presented with a sufficient factual record upon which to base such a decision. The
Commission therefore finds it appropriate to allow Man&raft an opportunity to establish
whether its notice of contest should be reinstated.
2
Accordingly, the Commission vacates the Chief Administrative Law Judge’s order
dated April 22, 1993. The Commission remands this case to the Chief Administrative Law
Judge with instructions to develop an evidentiary record through affidavit(s) or other
appropriate proceedings to allow Mannkraft to offer proof of the circumstances alleged in
Koines’ letter.
Edwin G. Foulke, Jr.
Chairman
*%iiy
Velma Montoya
Commissioner
Dated: September 28, 1993
NOTICE OF REMAND ORDER
The attached Remand Order by the OccupationalSafety and Health Review
Commission was issued and served on the following on September 28, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014
William Koines, Operations Manager
Man&aft Corrugated Packaging & Displays
1000 U. S. Highway 1
Newark, N. J. 07114
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
FOR THE COMMISSION
/?yw.O~,~B
Ray H. Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-l 246
FAX,
’ COM (202) 634-4008
F-K (202) 634-4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0304
MANNKRAFI’ CORPORATION
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 April 23, 1993. The decision of the Judge
will become a final order of the Commission on May 24, 1993 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 etition should be received by the Executive Secretary on or before
May 13, 1b93 in order to ermit sufficient time for its review. See
Comrmssion Rule 91, 29 e .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to: A
- . -
Executive Secretary
Occupational Safety and Health
Revrew 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
Office of the Solicitor, U.S. DO5
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) 634-7950.
Date: April 23, 1993
DOCKET NO. 93-0304
NOTICE IS GIVEN TO THE FOLLOWG:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOc
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 V&k, Room 70?
New York, NY 10014
William Koines, Operations Manager
Manx&raft Corporation
1000 U.S. Hi wa 1
Newark, NJ %v
711
Irvin Sommer
Chie KAdministrative Law Jud e
Occupational Safety and Healt 5
Review Commission
Room 417/A
1825 IS Street, N.W.
Washington, DC 20006 1246
00107361461:02
UNlTED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246
FAX:
COM (202) -
Frs 634408
. ..
SECRETARY OF LABOR, 0.
..
Complainant, ..
..
v. l
. Docket No. 93-0304
. .
MANNKIMFI’ CORPORATION, ;
..
Respondent. ..
..
ORDER
By motion dated March 9, 1993, the Secretary moves to dismiss the Respondent’s
notice of contest as not being timely filed under Section 10 of the Act. The Respondent did
not reply to the motion.
The record demonstrates that a citation was issued to the Respondent on November
24, 1992, and was received on November 25, 1992. Under Section 10(a) of the Act,
29 U.S.C. 659(a), an employer must not@ the Secretary that it intends to contest the citation
or proposed penalty within fifteen (15) working days of its receipt. The Respondent had
until December 17, 1992 to file its notice of contest, but did not do so, sending a letter dated
December 21, 1992 and received on December 22.
It is clear that the Respondent did not file a timely notice of contest. The citation
plainly state(s) the requirement to file a notice of contest within the prescribed time period.
Roy Kay, Inc., 13 BNA OSHC at 2022,198790 CCH OSHD par. 28,406 (No. 88.1748,1989).
The letter accompanying the citation states unequivocably that, “Please keep in mind that
a written letter of intent to contest must be submitted to the Area Director within 15
working days of your receipt of the citation.” “If (the employer) had carefully read even
portions of the written instructions stated and reiterated on the face of the ---citations, he
would have knmun how to proceed-.” Keefe Earth Boring Co., Inc., 14 BNA OSHC
2187,2192 (No. M-2521, 1991).
There is no evidence that his failure to file a timely notice was caused by “the
Secretary’s deception or failure to follow proper procedures.” Atlantic Marine, Inc. V.
.
O&MI?C & Dzudop, 524 F2d 476(5th Cir., 1975), nor is there any evidence that the
Respondent is entitled to any relief under Rule 60(b) of the Federal Rules of Procedure.
Accordingly, the Secretary’s motion to dismiss is granted. IT IS FURTHER
ORDERED that the citation, penalty and Qbatement date is AFFIRMED as issued.
*..
,+ < p --v-l\
IRVING SOMhlIER
Judge
DATED: ~221993
Washington, D.C.
Get today's answer for your situation
You just read Commission precedent from 1993. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.