Voodoo Constr. Corp.

Plain-English summary

OSHA issued Voodoo Construction Corporation serious and repeat citations that the company received on November 29, 1993. The company said it faxed the documents to its attorney, but his fax machine malfunctioned and neither the company nor counsel followed up in time to file a contest. The judge found that the company had office staff and prior OSHA experience but failed to confirm that its important government mail was handled. He also found that counsel failed to investigate the blank fax caused by the equipment problem. These business and legal-office failures were not excusable neglect, so the late notice was dismissed and the citations and proposed penalties were affirmed.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Procedural. The late notice of contest was dismissed, leaving the serious and repeat citations and proposed penalties in effect.
• Key point: A fax malfunction does not excuse a missed contest deadline when the employer and its counsel fail to follow up diligently.

Full text (OSHRC public release)

                          UNITED STATES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-1968
VOODOO CONSTRUCTION CORP.
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATLVE L4W JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 23, 1995. The decision of the Judge
will become a final order of the Commission on February 22, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIEUNG REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
An such etition should be received by the Executive Secretary on or before
Fe g ruary P3, 1995 in order to emit sufficient time for its review. See
Commission Rule 91,29 CF. If .2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Ekecutive.Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, DC. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial I3i ation
Office of the Solicitor, U.S. DO%
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 calI (202) 606-5400.
FOR THE COMMISSION

Date: January 23, 1995
DOCKET NO. 94-1968
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room s4004
200 ConstitutionAve., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq l

Re ‘onal Solicitor
off ce of the Solicitor, U.S. DOL
1
201 Varick, Room 707
New York, NY 10014

David S. Sabghir, Esq.
565 E. 8th Street
Brooklyn, NY 11218

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

00102782976:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th floor
Washington, DC 200364419
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SECRETARY OF LABOR, - 00
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   Complainant                        0
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           v.
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                                      0       Docket No. 94-1968
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VOODO CONSTRUCTION CORP., ’
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Respondent. 0
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Appearances:

   his A Micheli, Esq.                David S. Sabghir, Dq.
         Office of the Solicitor              565Eaststhstreet
         U.S. Department of Labor             Brooklyn, New York
                 For Complainant                     For Respondent

Before: Chief Administrative Law Judge Irving Sommer

                           DECISION AND ORDER

The Secretary moved to dismiss the Respondent’s notice of contest as not being timely

filed under section 10 of the Act. A hearing was held in New York, N.Y. on October 20,

1994, concerning the merits of the motion at which time testimony and evidence were.

profert by both parties.

The Respondent was issued two citations (serious and repeat) and notification of

penalties on November 24,1993, which were received on November 29,1993. Under section

IO(a) of the Act, 29 USC. 659(a), an employer must notify the Secretary that it intends to
 2

contest the citations or proposed penalty within fifteen working days of its receipt. The

Respondent had until December 20, 1993, to file its notice of contest, but did not do so,

insteadits attorney, Mr. Sabghir sent a letter to the Commissiondated February 2, 1994,

blaming the failure to file in a timely fashion on himself stating, “As I have handled their

prior OSHA matters as well as their administrative law work, they faxed their papers to me

as they normally do. Unbeknownst to them, although there was paper in my machine, it was

not functionaland wasunable to ascertain who or what was faxed to me.” In short, he stated

the client faxed him the OSHA papers which he never received due to a broken fax

machine.

 Mr. Genek Jakobowicz, the Supervisor and Executive Officer of the Corporation

testified that the firm had about 50 employees and about 6 or 7 clericals working in the

office; that there was a system in place for receipt of all incoming mail, He recalled

receiving the citations from OSHA and that the president “most likely saw that mail” and

told the girl to fax it to the attorney. He further testified that they were waiting for a

responsefrom their attorney but because of “the changes, we have some problems financial

and everything, we have a lot of people change. Some people quit on us and some people

left because of the financial conditions and there was no one following up on that letter, if

it was received, what has happened.” (T-17) To further befuddle this state of affairs, Mr.

Sabghir stated that because his fax machine was broken, he never received the letter

regarding the citations sent by his client; actually, since he responded by letter dated

February 2, 1994, it took approximately 6 weeks for him to become acquainted with the

citations issued and respond to them. The evidence demonstrates that Voodoo Construction

is a going business, employs 6 or 7 clerical, some of which are assigned to and take care of
 3

the mail received; the company has dealt with OSHA before, the president was aware of the

OSHA mail, and while they allegedly faxed a letter to their attorney regarding the citations,

did not follow up to see that what was necessary (filing a notice of contest timely) was

effectuated; compounding the error was the failure of their attorney who stated his fax was

only out one day to check with his clients regarding the meaning of the blank fax received.

This is a case where a business has not followed its own procedures of following up to see

that an important governmental communication is properly and timely answered; it is also

a case where counsel had a sudden failure of equipment, but he compounded it by not

checking further to identify whence the fax k-e from, in effect just not looking after his

business properly. -What permeates the state of events here that led to the late filing was

slovenly business practices by both the company personnel and counsel; there was a lack of

diligence on part of the company in following up on its fax herein, and further lack of

diligence by counsel in reconstructing the fax and meeting the Act’s requirements as to

notice promptly. The evidence does not extablish “excusable negle& under Rule 60. The

Commission has held that employers whose improper business procedures has led to ftiure

to file on a timely basis are not entitled to relief See Louisiana-Pajfic Corp., 13 BNA

OSHC 2020, 198740 CCH OSHD par. 28,409 (No. 86-1266,1989); Sznxutsbtugmei& &

Fiizishtig Co., 13 BNA OSHC 2058, 1987-90 CCH OSHD par 28,433 (No 88-1830, 1989).

What is indicated here is simple negligence, slovenly business practices and lack of diligence

in policing good business follow-up. Such conduct will not establish grounds for relied EK

Constmctibn Co., 15 BNA OSHC 1165-6. The Secretary’s motion to dismiss the late filed

notice of contest is GlXANTED.
 .

                 +              ORDER

The citations and proposed penalties are AFFW in all respects.

                                               IRVING SbMER
       :JN 2 c I995                            Chief Judge

DATED:
Washington,
D.C