UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

__________________________________
SECRETARY OF LABOR,               :
                                  :
    Complainant,                  :
                                  :
          v.                      :          Docket No. 01-0980
                                  :
JANUSZ SZYDLOWSKI d/b/a J HOME    :
  IMPROVEMENT, INC.,              :
                                  :
    Respondent.                   :
__________________________________:

Appearances:

    Steven E. Walanka, Esq.                 Mr. Janusz Szydlowski, Pres.
    U.S. Department of Labor                J Home Improvement, Inc.

         For Complainant                            For Respondent

Before: Chief Judge Irving Sommer

*DECISION AND ORDER*

The citation setting forth the alleged violations and the accompanying
notification of proposed penalty was issued by certified mail on April
17, 2000 and received by the Respondent on April 26, 2000. Pursuant to
section 10 (a) of the Act, 29 U.S.C., sec.659 (a), Respondent 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 May 17, 2000. In the absence of a timely contest, the
citation and proposed penalty would be deemed a final judgement of the
Commission by operation of law. Section 10(a) of the Act. The Respondent
did not file a notice of contest within the prescribed period, and its
first notice was a letter sent directly to the Commission and received
on June 5, 2001 requesting that the case be re-opened indicating he had
not received notice that he ``could contest the case within 15 days.''

**

**

**

*DISCUSSION*

The record clearly shows that the Respondent did not file a notice of
contest within the 15 day contest period. Its first response was the
letter to the Commission almost one year later. The record reveals that
the citation and notification of penalty together with OSHA booklet 3000
which outlines Employer Rights and Responsibilities Following an OSHA
Inspection was sent by certified mail to the Respondent and duly
received. In his letter to the Commission received on June 5, 2001, Mr.
Syzdlowski states, `` I did not received information that I could
contest case within 15 days. I did not received by mail booklet OSHA
3000, so I did not now my rights and responsibilities.'' At the trial he
admitted receiving the citation on April 26, 2000. The citation
repeatedly admonishes that the 15-day deadline for contesting violation
and/or penalties is critical. A paragraph captioned ``Right to Contest''
states that (u)nless 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 booklet OSHA 3000 which accompanied the citation similarly advises
of the need to file a timely notice of contest. The record further shows
that Mr. Syzdlowski was in the home improvement business for five years,
employed at least 4 persons, and obviously carried on all necessary
business procedures such as purchasing materials, obtaining new business
and entering into contracts for work activity. He admits and showed in
his testimony an ability to understand and speak English. While not
alleging an inability to read, he intimates he could not. Previous to
his home improvement business he was a truck driver for twenty years
delivering packages. Both his positions undoubtedly required a
reasonable ability to read in order to perform. If he could not read or
understand the citation and accompanying brochure it was incumbent upon
him to request assistance from his accountant or other persons. My
impression of him at the trial leads me to believe that he testified in
an intelligent manner, was fully capable of response to the questions
and was able to conduct a business over a length of time, all pointing
to sufficient intelligence and ability to successfully read and
understand the documents sent to him or to get help with them. The
Commission has held that a business must have orderly procedures for the
handling of important documents and that the onus is upon the employer
to have the necessary steps taken to see that OSHA matters are handled
properly. If as alleged, a businessman such as herein does not fully
comprehend the important documents forwarded by a governmental agency,
he is obliged to have the citation, etc. which he acknowledges receiving
fully explained to him. It is clear that the untimely filing herein was
due to negligent handling of the citation by the Respondent. Respondent
had clear notice of the need to contest within 15 days. Its mistake was
neither excusable nor justified by any misconduct or misleading on the
part of the Secretary. The motion by the Secretary to dismiss is
GRANTED, the notice of contest is dismissed, and the citation and
notification of penalty is AFFIRMED in all respects.

SO ORDERED.





/s/

IRVING SOMMER

Chief Judge

DATED: 15 OCT 2001

Washington, D.C.