Gold Coin Ironworks

Plain-English summary

Gold Coin Ironworks received a serious citation and proposed penalty on October 7, 1994, making its notice of contest due October 31. It requested an informal conference but did not file a contest until November 23. The employer also failed to appear at the scheduled hearing, arriving after the Secretary's case had ended and the record had closed, and later submitted nothing despite permission to do so. Chief Judge Irving Sommer found that the citation and accompanying booklet clearly explained the deadline. Because the late filing resulted from carelessness and poor management rather than government misconduct or excusable neglect, he dismissed the contest and affirmed the citation and penalty as issued.

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 penalty were affirmed as issued.
• Key point: Requesting an informal conference does not replace a timely notice of contest, and ordinary business carelessness does not toll the statutory deadline.

Full text (OSHRC public release)

                         UNITEDSTATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 2003643419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-3372
G. C. IRONWORKS
Respondent.

                NOTICE OF DOCKETING
          OF ADMINISTR4TIV’E IAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on May 53 1995. The decision of the Judge
will become a final order of the Commissibn on June 22, 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 petition should be received by the Executive Secretary on or before
June 11, 1995 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Review 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. DOEi
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
hawrg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: May 23, 1995
DOCKET NO. 94-3372
NOTICE IS GIVEN TO THE FOLLOWING:

                    .

Patricia Rodenhausen, Esq
Re ‘onal Solicitor -
O&e of the Solicitor U.S. DOL
201 Varic& Room 7Oj
New York, NY 10014

Michael Creegan
Gold Coin Ironworks
55 N. Evarts Avenue
Elmsford, NY 10523

Irvin 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

00106720105:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

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SECRETARY OF LABOR, ..
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Complainant, ..
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v. .. Docket No. 94-3372
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GOLD COIN IRONWORKS, l
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   Respondent.                                 0
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Appearances:

            Luis A. Micheli, Esq.                                     No appemnce by R-dent
                   U.S. Dept. of Labor
                   New York, N.Y.

BEFORE: Administrative Law Judge Irving Sommer

7

                                  DECISION AND ORDER

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

October 4, 1994. A hearing was held in New York, N.Y. on April 11, 1995 concerning the

motion of the Secretary dated January 24,1995to dismiss the Respondent’s notice of contest

as not being timely filed under the Act. The trial of the hearing was set down for 10 PLM.

The Secretary appeared with his witness at the established time and there was no

appearance by the Respondent. The hearing was held and the record closed at lo:30 A.M.
2

The Judge then proceeded to hold his next hearing, and during the course thereof Michael

Creeger, the patron of Gold Coin arrived. His time of arrival was 11:20 A.M. His statement

merely was that he was sorry to be late. The Secretary had long finished his case and he

and his witnesses were gone and the record closed. Mr. Creeger was told he can submit by

letter any statement he wishes the Judge to consider. To date, there have been no

submissions and this case is now ready for decision.

     Mr. Scott Schrilla, a compliance           officer with the Occupational      Safety and Health

Administration testified that he had conducted an inspection of the Respondent and as a

result had issued a citation and notice of proposed penalty on October 4, 1994. The citation

was received by the Respondent on October 7,1994, and the last day to contest the citation

under the Act was October 31, 1994. Mr. Schrilla further testified that the Respondent had

not filed a notice of contest on or before the due date, and had written on October 11,1994

asking for an informal conference. Mr. Antonio Pietroluongo, the assistant area director for

OSHA testified that pursuant to Respondent’s request for an informal conference

Respondent’s office was contacted and given three dates for such informal conference, but

that Gold Coin did not contact him until 10-15 days thereafter, at which time both parties

were unable to get together. Mr Pietroluongo stated that accompanying the citation was

literature setting forth the Respondent’s rights and responsibilities under the Act.

      The evidence of record fully demonstrates              that the notice of contest herein was

untimely filed, being filed by letter dated November 23,1994 with the Review Commission.

The citation “plainly state(s) the requirement to file a notice of contest within the prescribed

time period.” Rev Kav, 13 BNA OSHC 2021,2022,1987--90, CCH OSHD, par. 28,406
3

(No. 88-1748,1949). Accord, Acrom Construction Services, 15 BNA OSHC 1123,1126,1991

CCH OSHD par. 29,393 (88-2291,1991). Furthermore, Respondent was fully advised of the

fifteen day filing period in the accompanying “OSHA 3000” booklet which provides an

“additional, straightforward explanation” of the need for a timely contest. See Keefe Earth

Boring Co.,14 BNA OSHC 2187, 2190, 2192, 1991 CCH OSHD par 29,277 (No. 88-2521,

1991). What is present here is simply carelessness and negligence in not properly attending

to important business matters. Such management inadequecy does not entitle it to relief

pursuant to Rule 60 of the FRCP under these circumstances. The service by the Secretary

complied with the Act, and the Respondent has not demonstrated that the Secretary’s

misconduct caused the late filing. There is therefore no basis for tolling the statutory time

limitations under the equitable principles stated in Atlantic Marine, Inc. v. OSHRC, 524 f2D.

476(5 Cir. 1975) and followed in Keppel’s, Inc., 7 BNA OSHC 1442.

   Accordingly, the Secretary’s motion to dismiss the notice of contest is GRANTED.

                                          ORDER

   The Citation     and penalty     issued to the Respondent       on October     4, 1994 is

AFFIRMED as issued.

                                                         IRVING%-~MMER
                                                         Chief Judge

DATED: WY.23 IBS
Washington, D.C.