Lee Zoldan, Inc.

Plain-English summary

Lee Zoldan, Inc. is a residential and commercial plumbing and heating business in Middletown, New York, in operation since 1966. After OSHA issued a citation and proposed penalties (dated January 12, 1995), the company did not file a written notice of contest within the 15 working days the law allows, which would have run to February 6, 1995. The company's president said he thought that if he corrected the violations and only wanted to contest the penalties, no written notice was needed; he admitted he had not read the citation and had relied on clerical staff. The Secretary moved to dismiss the late notice of contest. Chief Judge Irving Sommer explained that the citation paperwork plainly states the deadline and that a party may contest penalties alone but still must do so in writing within 15 working days. Finding only simple negligence rather than the "excusable neglect" needed for relief under Rule 60(b)(1), the judge granted the motion to dismiss and affirmed the citation and penalties in all respects.

Decision snapshot

• Cited standard(s): None enumerated; the decision turns on the timeliness of the notice of contest under section 10(a) of the Act (29 U.S.C. § 659(a)) and relief under Fed. R. Civ. P. 60(b)(1).
• Outcome: Procedural. The untimely notice of contest was dismissed and the citation and proposed penalties were affirmed in all respects.
• Key point: An employer's failure to read the OSHA citation and follow its plainly stated contest instructions is simple negligence, which does not excuse a late notice of contest; contesting penalties only still requires a timely written notice.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Phone: (202) 606-5400
Fax: (202) 606-5050

SECRETARY OF LABOR,
    Complainant,

    v.

LEE ZOLDAN, INC.,
    Respondent.

OSHRC DOCKET NO. 95-0617

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 September 29, 1995. The decision of the Judge will become a final order of the Commission on October 30, 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 October 18, 1995 in order to permit sufficient time for its review. See Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall 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 Litigation
    Office of the Solicitor, U.S. DOL
    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 having questions about review rights may contact the Commission's Executive Secretary or call (202) 606-5400.

Date: September 29, 1995

DOCKET NO. 95-0617
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq., Regional Solicitor, Office of the Solicitor U.S. DOL, 201 Varick, Room 707, New York, NY 10014

Lee Zoldan, President, Lee Zoldan, Inc., 381 North Street, Middletown, NY 10940

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

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Phone: (202) 606-5400
Fax: (202) 606-5050

SECRETARY OF LABOR,
    Complainant,

    v.

LEE ZOLDAN, INC.,
    Respondent.

Docket No. 95-0617

APPEARANCES:

Luis Micheli, Esq., Ms. Sabina Reza, For the Complainant

Lee Zoldan, President, For the 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 August 10, 1995 concerning the merits of the motion at which time evidence and testimony was proffered by both parties.

The citation setting forth the alleged violations and the accompanying notification of proposed penalty was issued by certified mail on January 12, 1995 and received on June 13, 1995. Pursuant to section 10(a) of the Act, 29 U.S.C. 659(a), Zoldan was required to notify the Secretary of any intent to contest within 15 working days of receipt of the citation and notification of proposed penalty, or February 6, 1995. In the absence of a timely contest, the citations and proposed penalties would be deemed a final judgement of the Commission by operation of law. Section 10(a).

In a letter dated March 24, 1995 the Respondent stated that its failure to file a notice of contest during the 15 day period was that he believed that if the violations were corrected and he only contested the penalties, no notice was required. Similarly, the testimony of Lee Zoldan, the corporate president was that a portion of the citation stated, "If you do not disagree with the violation, it is not necessary to respond", and thusly since he was only contesting the penalties, was of the opinion no written contest within the time period was due. Mr. Zoldan admitted he had not read the citation and accompanying document, but relied on his wife, who is one of the clerical employed at the firm for the procedure to follow.

Had Mr. Zoldan read the citation carefully he would have noted under the section called the following instructions:

RIGHT TO CONTEST- You have the right to contest this Citation and Notification of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that you intend to contest the citation(s) and/or proposed penalty(ies) within 15 working days after receipt, the citation(s) and the proposed penalty(ies) will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or [agency].

The record plainly shows that the Respondent filed an untimely notice of contest. The issue is whether said filing may be excused under the circumstances. The evidence demonstrates that the Respondent has been in the residential and commercial plumbing and heating business since 1966. He employees 8-10 plumbers and has his wife and sister in law doing full-time clerical work. The citation and the accompanying material which the Respondent received "plainly state(s) the requirement to file a notice of contest within the prescribed period." Roy Kay, 13 BNA OSHC 2021, 2022. Accord, Acrom Construction Services, 15 BNA OSHC 1123, 1126. The evidence does not establish excusable neglect or mistake under Rule 60(b)(1). What is indicated here is negligence on the part of the company president who admittedly did not read the material sent by OSHA outlining his rights and responsibilities. The Commission has held that employers whose improper business procedures has led to failure to file in a timely manner are not entitled to relief. See Louisiana-Pacific Corp., 13 BNA OSHC 2020; Stroudsburg Dyeing & Finishing Co., 13 BNA 2058. Simple negligence will not establish entitlement to relief. E.K. Construction Co., 15 BNA OSHC 1165, 1166; Rebco Steel Corp., 8 BNA OSHC 1235.

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

ORDER

The citation issued to the Respondent on January 12, 1995 and the proposed penalties are AFFIRMED in all respects.

IRVING SOMMER
Chief Judge

DATED: September 28, 1995
Washington, D.C.