Moishe's Moving Systems, Inc.

Plain-English summary

Moishe's Moving Systems, Inc. received a serious OSHA citation on December 8, 1992, making its notice of contest due December 30. The company filed its contest in January after the building manager returned from vacation and found the citation in his mail. Chief Judge Irving Sommer noted that 30 to 40 employees, including office personnel, were present and that the manager called the office daily but was never told about the certified mail. He found that management had no system for handling important mail while the manager was absent. Because simple negligence and inadequate business procedures were not excusable neglect, the judge dismissed the late contest and affirmed the citation and proposed penalty.

Decision snapshot

• Cited standard(s): None enumerated; the decision concerns the late contest of a serious citation.
• Outcome: Procedural. The notice of contest was dismissed, and the citation and proposed penalty were affirmed in all respects.
• Key point: An employer must maintain continuous procedures for important mail during a manager's absence; a vacation does not excuse a late OSHA contest.

Full text (OSHRC public release)

                                United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW
                          1120 20th Street, N.W., Ninth Floor
                              Wishington, DC 200364419



                                                                        Phone: (202) 6oH4oo
                                                                         Fax:(202)~5050

SECRETARY OF UBOR
Complainant,
v. OSHRC DOCKET
NO. 94-2532
MOISHE’S MOVING SYSTEMS
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 June 2?, 1995. The decision of the Judge
will become a 5nal order of the Commission on July 24, 1995 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 Secre on or before
July 15 1B95 in order to ermit sufficient time for its review.3 ee
Commlsion Rule 91,29 8 .F.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. 20036-3419
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%
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the CommissioQ then the Counsel for
Regional Trial Uigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 6063400.

Date: June 22, 1995
DOCKEiT NO. 94-2532
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ‘onalSolicitor
off ce of the Solicitor, U.S. DOL
201 Varick, Room 707
New York, NY 10014

Fran Mulnick Parker, Corporate
Counsel
Moishe’s Moving & Storage, Inc.
215 Coles Street
Jersey City, NJ 07310

  Sommer

7 l

Chic Administrative Law Jud e
Occupational Safety and Heal ril
Review Corm&on
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washingto~~,DC 20036 3419

0010736081092
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE:
.
COM (202) 6064100 &202)6os5o5o
m(202)6064100 mm-

                                                   *.

SECRETARY OF LABOR, 0.

          Complainant,

                  v.                                        Docket No. 942532
                                                   ..

MOISHE’S MOVING SYSTEMS, ..
INC., ..

          Respondent.

                                                   .

Appearances:
Alan L Kammerman, Esq. Fran Mulnick Parker, Esq.
U.S. Dept. of Labor Corporate Counsel

                         For Complainant                                   For Respondent

BEFORE: CHIEF 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 March

14, 1995 concerning the merits of the motion at which time testimony and evidence were

profert by both parties.

          The Respondent was issued a serious citation and a notification of proposed penalty

on November 18, 1992 which was received on December 8, 1992. Under Section 10(a) of
2

the Act, 29 U.S.C. 659(a), an employer must notify the Secretary that it intends to contest

the citation or proposed penalty within fifteen working days of its receipt. The Respondent

had until December 30, 1992 to file its notice of contest, but did not do so, instead sending

a letter to the regional office of the Occupational Safety and Health Administration dated

January 4, 1993, which was received on January 11, 1993 stating therein, “Please let this

letter serve as our Notice of Intent to Contest the captioned citation issued on November

18, 1992, as well as the underlying violation, and the abatement date and penalty imposed

in connection therewith.”

  Mr. Erez Shtemlicht,     the building manager for the Respondent testified that he was

on vacation when the citation was received and found it in his box on his return and

immediately filed a notice of contest. The evidence shows that the Respondent was since

at least January 1992 in the process of reconditioning the building in question and moving

into the building. There was a temporary office on the third floor and some office space

elsewhere. Mr. Shtemlicht testified at the time involved herein there were 30 to 40

employees at the building including “some office people. ” He further testtied he called the

office every day and had not been told of the receipt of the citation by anyone.

While I am sympathetic to the plight of the Respondent, it is apparent there is present no

excusable neglect or mistake under Rule 60(b). What we have here is simple neglect on

part of management to provide assistance and suitable management procedures when the

person in charge is absent. Here, while the building manager was vacationing, no system

was in place to see that important mail was processed promptly; actually, Mr. Shternlich

admitted he called daily, and still was not apprised of the certified mail waiting for perusal
3

and disposition. The Respondent’s business procedures were both lacking and woeful. The

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

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

OSHC 2020; Stroudrburg Dyeing & Finishing Co., 13 BNA OSHC 2058. The office

procedures of the Respondent, a going business with over thirty people present at the

building herein should provide for reliable, continuous mail scrutiny. The reasons advanced

by the Respondent for its failure to file in a timely manner do not constitute “excusable

neglect” or “any other reason for justifying relief’ under Rule 60(b) of the Federal Rules

of Civil Procedure. Simple negligence will not establish entitlement to relief. E.K

Construction Co., 15 BNA OSHC 1165, 1166; Rebco Steel Cop., 8 BNA OSHC 1235.

   Accordingly, the motion of the Secretary to dismiss is GRANTED.

                                           ORDER

   The citation issued to the Respondent      on November 18,1992 and proposed penalty

is AFFIRMED in all respects.

                                                        IRVING SOMMER
                                                        Chief Judge

DATED: VgjN 2 1=
I#ashington, D.C.