Everett Group

Plain-English summary

This case was a dispute between the Secretary of Labor and an employer, Everett Group, over an OSHA citation. It never reached the safety issues. The judge scheduled a pre-trial telephone conference, rescheduled it twice to accommodate the government's counsel, and then the government's attorney still did not join the call or contact the court afterward. The employer moved to dismiss. The judge found the government counsel's failure to appear, and his silence after the conference was rescheduled around his own travel, amounted to contumacious conduct. Under the Commission's default rules, the judge dismissed the Secretary's complaint. The practical result is that the citation against Everett Group did not stand.

Decision snapshot

• Cited standard(s): None. The order rests on the Commission's own procedural rules, 29 C.F.R. § 2200.51 and § 2200.41(a).
• Outcome: The Secretary's complaint was dismissed on the employer's motion; no penalty imposed.
• Key point: A party, including the government, can lose by default when its counsel repeatedly fails to appear for a scheduled pre-trial conference.

Full text (OSHRC public release)

Docket No. 01-1012, Everett Group

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                  Complainant,

v.

Docket No. 01-1012

EVERETT GROUP,

                  Respondent.

DECISION AND ORDER

       On July 5, 2001, the undersigned issued his Notice of Pre-Trial Conference and Scheduling

Order which scheduled a pre-trial telephone conference for July 24, 2001 at 9:30 a.m. EDT.

         On July 12, 2001, the Complainant's counsel filed a Motion To Continue. The request for

a continuance of the pre-trial telephone conference was based upon the fact that "counsel for
Complainant will be out of the country from July 18, 2001 until July 25, 2001." The motion was
granted by Order dated July 16, 2001, and a new pre-trial telephone conference was schedule for July
26, 2001 at 9:00 a.m. EDT.

          At the request of the Office of the Solicitor, U. S. Department of labor, Cleveland, Ohio,

(herein after referred to as "SOL"), the time of the pre-trial telephone conference scheduled for July
26, 2001 was changed to 10:00 a.m. EDT. At the designed date and time, this Office initiated the
pre-trial telephone conference call. The SOL informed the undersigned that the Complainant's
counsel had been delayed, but his return to the office was expected. This Office requested that
Complainant's counsel notify the undersigned upon his arrival. While the Respondent's counsel was
available for the pre-trial telephone conference, the Complainant's counsel did not contact this Office
as requested. Despite the request of this Office to have Complainant's counsel telephone this Office
upon his arrival at work on July 26, 2001, no contact was made with either this Office or with
counsel for the Respondent then or at any time thereafter.

         On July 27, 2001, Respondent's counsel filed his Motion to dismiss. The basis of the Motion

is that " * * * the Complainant has failed to appear, participate and thus otherwise no comply on
July 26, 2001 with instructions by the Court."

         On July 30, 2001, the undersigned issued an Order To Show Cause. It required the

Complainant's counsel to file a response "setting forth the reason(s) the Secretary should not be
declared to be in default and the Motion To Dismiss be granted."

         On August 14, 2001 the Secretary fled her response to the Order To show Cause. In his

response, the Complainant's counsel asserts that "[o]n the morning of his scheduled return [July 26,
2001], counsel was unavoidably delayed"; that "Ms. [Mary Anne] Garvey {another counsel in SOL]

• • • made a second request that the call be rescheduled"; that "[t]he conference call was then set
      for 11:00 a.m."; and that [c]ounsel returned to the office shortly after 11:00 a.m.". In summary,
      counsel sates that his "failure to appear for the telephone pre-trial conference was the result of
      unavoidable travel delay, and was not an intentional or negligent act."

                                       DISCUSSION AND CONCLUSION
      

      Rule 51 of the Commission's Rules of Procedure, 29 C.F.R. 2200. 51 provides, in

pertinent part, that the Judge shall consult with all attorneys by scheduling a telephone conference.
The purpose of the conference is to narrow the issues, encourage settlement and expedite the
administrative trial process.

         Rule 41(a) of the Commission's Rules of Practice, 29 C.F.R. 2200.41(a),

as pertinent, provides:

                                Sanctions: When any party has failed to plead or

                                                 otherwise proceed as provided by these

                                                 rules or as required by the * * * Judge,

                                                 he may be declared to be in default * * *

                                                 (2) on motion of a party. Thereafter, the

                              `           * * * Judge, in [his] discretion, may

                                                  enter a decision against the defaulting

                                                  party * * *.

         Commission Judges have the discretion to impose sanctions on parties who violate their

orders. TRG Drilling Corporation (Mid-Continent Division), 10 BNA OSHC 1268 (No.80-6008,
1981). Those sanctions may, at the Judges' discretion, include the rendering of a default judgment
where the noncomplying party's conduct has been contumacious. Contumacious conduct can include
a failure to appear at a pre-trial conference, a failure to file a pre-trial statement, a failure to prepare
for a pre-trial conference or a failure to comply with a pre-trial order. J. F. Edwards Construction
Co. V. Anderson Safeway Guard Rail Corp., 542 F2d 1318, 1323 (7th Cir. 1976). Carter v. City of
Memphis, Tennessee, 636 F2d 159 (6th Cir. 1980). Harmon v. CSX Transportation, Inc . 110 F3d 364
(6th Cir. 1997) and Duquesne Light Company , 8 BNA OSHC 1218 (No. 78-5303, 1980).

         It is the opinion of the undersigned that the Complainant's counsel has shown total disregard

for this Court, the administrative process and the pending proceeding. See Quinn & Kwolek, Inc. ,

18 BNA OSHC 2100 (No. 99-1285, 2000). Pre-trial procedures including pre-trial telephone
conferences, aid in the early formulation of issues benefit all parties, and result in the more efficient
use of Commission resources. The Complainant's counsel's failure to appear at the appointed time
and place and to thereafter fail to contact the Court regarding this failure, even after the pre-trial
telephone conference had been rescheduled to conform to his schedule amounts to the type of
contumacious behavior that the Rules were enacted to avoid. In order to ensure that the Complainant,
in the future, fully complies with all orders of this Court, the complaint, in this case, is DISMISSED.

         IT IS ORDERED that the Motion to Dismiss is GRANTED.

         IT IS FURTHER ORDERED that the Complaint is DISMISSED.

                                                                                 /s/

Dated: 27 AUG 2001 G. Marvin Bober

Washington, D.C. Administrative Law Judge