OSHRC ALJ decision
Docket 93-2513
Decided June 6, 1994
Procedural
Judge Irving Sommer
Tropical Brands Packing Corp.
Late notice of contest dismissed, citations stand
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This order from 1994 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.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Tropical Brands Packing Corp., a New Jersey company, received two OSHA
citations with a proposed penalty on June 1, 1993. An employer has 15
working days after receiving a citation to file a written notice of
contest. The company received the citations on June 4, 1993 but did not
respond until an August 18, 1993 letter asking for the penalties to be
reduced, well past the deadline. The company president testified he had
received the citations but had not read them and did not realize a
notice of contest was required. Administrative Law Judge Irving Sommer
found this was simple negligence, not the "excusable neglect" that Rule
60(b) requires to reopen a late filing, and granted the Secretary's
motion to dismiss. Because the notice of contest was untimely, the
citations and proposed penalties were affirmed in all respects and the
case was never decided on its safety merits.
Decision snapshot
- Cited standard(s): None identified in this decision; the ruling turns on the 15-day contest deadline in Section 10(a) of the OSH Act (29 U.S.C. § 659(a)).
- Outcome: Secretary's motion to dismiss granted; the untimely notice of contest was rejected and the underlying citations and penalties were affirmed in all respects.
- Key point: A company president's failure to read citations he received on time is simple negligence, not excusable neglect, so it does not justify relief from the missed 15-day deadline.
Full text (OSHRC public release)
&JNKEO STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
On8 Lafayetie Centm
ltmmth Stmet, Now.-8th Floor
Washington, DC 200364419
~gtf!gZg l
SECRETARY OF LABOR
complainan&
v. OSHRC DOCKET
NO. 934513
TROPICAL BRANDS PACKING CORP.
Respondent.
NOTICE OF -G
OF ADMINIS~~ LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case was
docketed with the Commission on May go 1994. The decision of the Judge
will become a final order of the Comm&on on June 6 1994 unlcsa a
Commission member directs review of the decision on & before that data. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY “IHE
COhMISSION MUST FILE A PETITION FOR DISCZRETIONARY REVIEW.
Any such tition should be received by the Executive Secre on or bfm
May25 1Ei in order to nnit suf&ient time for its review.Te e
Comm&sion Rule 91,29 &R 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Remew Commission
1120 20th St. N.W., Suite 980
Washington, D.C 200364419
Petitioning parties shall also mail a copy to:
Daniel J. h&it, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%kitor, U.S. Dck
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
t
Date: May 5, 1994
bOCKET NO. 93-2513
NOTICE IS GIVEN ‘Iy) THE FOLUWING:
Daniel J. Mih, m.
Counsel for Re 'onal Trial Liti ticm
office of the si!!btor, U.S. DCE
Room S4004 ,
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
Of%ie of the Solicitor U.S. DOL
201 hick, Room 703
New York, NY 10014 .
Max Behar
Tro icai Brands Corp.
. 29Oltcterans
Rutherford, NJ 07070
Iwin Sommer
Chief Administrative Law Jud e
Occupational Safety and Heal B
Review Commission
One Lafayette Centre
1120 20th St. N.W. Suite 990
Washington, DC 26036 3419
00109042754:02
UNKEO STATES OF AMERICA
OCCUPATIONAL SAFETV AND HEALTH REVIEW COMMISSION
&W bfq8ttO CentI’
1120 20th Street, NeWm
- 9th Floor
Washington, DC 200304419
a
v. l Docket No. 93-2513
TROPICAL BRANDS PACKING
a=9
Respondent.
Appearances:
Janice Silberstein, Esq. Max Behar, President
US Department of Labor Tropicat Brands Packing Corp.
201 Varick Street 290 veterans Boulevard
New York, N.Y. Rutherford, NJ.
For the Complainant For the Respondent
Before: Administrative Law Judge Irving Sommer
.
DECISION AND ORDER
The Respondent was issued two citations and a notification of proposed penalty on
June 1,1993. A hearing was held in New York, N.Y. on March 23, 1994 conceming the
motion of the Secretary dated December 10, 1993, to dismiss the Respondent’s notice of
contest as not being timely filed under Section 10 of the Act.
Philip Peist, the Assistant Area Director for OSHA located in Hasbrook Heights, N.J.
testified that on June 2, 1993, citations were issued to Respondent together with OSHA
pamphlet 3000 which describes the employer’s rights, responsibilities after an inspection
i&u&g information about contesting the citation. Under Section lo(a) of the Occupation- .
aI Safety and Health Act of 1970,29 U.S.C. 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 to the Commission and not subject to review by any court or agency.
Mr. Peist testified that the Respondent received the citations on June 4,1993 and had until .
June 25,1993 to tilt its notice of contest but did not do so, the first response being OSHKs
receipt of a copy of a letter the Respondent sent to the Commission dated August 18,1993
requesting abatement of the penalties.
The evidence of record fully demonstrates that the notice of contest herein was
untimely filed. The Respondent in his letter of the 18th of August ascriiii the Iate filing
to a plant engineer who “misinterpreted” the documents sent, and had thought that
. “correction alone” of the violations would prevent a penalty. The ktter further
indicates that the chief executive of the Respondent, not having been present at the
inspection was unaware of the violations. At the trial I!&. Behar the company president
admitted that the citations had been received and forwarded to him at the New York office
of the corporation on either June 4 or 5,1993, that he had not read the documents and “had
. no idea that we had to pay those fines, or of course I would have contested it within
. the 15
days and made them aware of it.”
The citation “plainly state(s) the requirement to file a notice of contest with the
prescriied time period.” Roy Kby, 13 BNA OSHC 2021,2022, 1987 CCH OSHD, par.
28,406 (No. 88-1748,1989). Acconij Aavm Cusmrcrr’on Sent&s, 15 BNA OSHC 1123,
1126, 1991 CCH OSHD par. 29393 (No. 88-2291, 1991). While I am sympathetic to the
plight of the Respondent it is apparent that there is present no excusable neglect or mistake
under Rule 60 (b)(l). What is indicated is simple negligence on the part of the Respondent.
The failure of Mr. Behar, the corporate president who received the citations in a timely
manner to read and digest its import and to act accordingly was pure carelessness and
negligence, and did not constitute “excusable neglect” or “any other reason for justifying
relief’ under Rule 60@)(l). Simple negligence wii not establish entitlement to relief.
3
E.K Consauctiort Co., 15 BNA OSHC 1165, 1166, 1991 CCH OSHD par. 29,412 (No. 9@
2460,199l); Rebco Steel Corp., 8 BNA OSHC 123S,l980 OSHD par. 24,334 (NOS.77.2040
& 77.2947, 1980).
Accordingly, the motion of the Secretaq to dismiss is GRANTED.
The citations issued to the Respondent on June 1, 1993 and proposed penalties are
AFFIRMED in all respects. p\
1
IRVING $OMMER
Judge
DATED: Mm - 4 1994
. WashingtoI’1,D.C.
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