Daewoosa Samoa, Ltd.

Plain-English summary

OSHA cited Daewoosa Samoa after inspecting its garment-manufacturing worksite in American Samoa, alleging serious, repeat, other-than-serious, and failure-to-abate violations. The company timely contested, and the proceeding was stayed while its president faced a related criminal trial. After the stay ended, the judge repeatedly directed the corporation to identify a representative who would appear at the hearing in American Samoa. Daewoosa submitted documents but did not designate a representative, so the judge dismissed the notice of contest under Commission Rule 41 and affirmed the citations and proposed penalties as written without deciding the safety allegations on the merits.

Decision snapshot

• Cited standard(s): The order does not identify the substantive OSHA standards.
• Outcome: The notice of contest was dismissed, and all citations and proposed penalties were affirmed as written.
• Key point: A corporate employer's failure to designate a representative for a scheduled hearing can result in default and dismissal of its contest.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                             v.                               OSHRC DOCKET NO. 01-1272

DAEWOOSA SAMOA, LTD.,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, San Francisco, California

      For the Re spondent:
               None

Before: Administrative Law Judge: Robert A. Yetman

                                           DECISION AND ORDER
      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called “the Act”).
During the period November 30, 2000 to February 7, 2001, the Occupational Safety and Health
Administration conducted an inspection of Respondent’s worksite located at Tafuna, Pago Pago, American
Samoa. As a result of that inspection, a serious citation listing eleven violations with multiple subparts,
a repeat citation listing eight violations and an other citation listing eight violations were issued to
Respondent on May 24, 2001. In addition, a failure to abate citation was issued on the same date alleging
that Respondent failed to abate one item which had been cited as a result of an inspection conducted on
June 24-30, 1999. By letter dated June 14, 2001, a notice contesting the aforesaid violations was filed by
Respondent’s president Kil Soo Lee.1 Thereafter, a complaint was filed by the Secretary on July 18, 2001,
and an undated, unsigned answer to the complaint was filed on behalf of Kil Soo Lee as Respondent’s
president. The answer generally denies the violations as alleged.
By motion dated September 25, 2001, Complainant sought a stay of these proceedings on the
ground that Respondent’s president Kil Soo Lee was awaiting a criminal trial relating to the violations
alleged in this proceeding and the Department of Justice attorneys had requested the Secretary of Labor
to seek a stay of this proceeding. By order dated October 17, 2001, the motion for stay of proceedings was
granted and that order remained in effect until February 4, 2003 when the matter was reassigned to the

         1
         It app ears that the notice of co ntest was prep ared by M r. Alexander Silvert, First Assistant Federal Pub lic

Defender, Honolulu, Hawaii for Mr. Lee. Mr. Silvert agreed to accept all documentation relating to the case on
behalf of Mr. Lee.
undersigned for trial. The trial was scheduled to be heard on April 23-25, 2003 at Pago Pago, American
Samoa by an order of the same date. The original trial date was continued on two occasions and a final
trial date has been scheduled to commence on August 18, 2003.
The lengthy and convoluted history of this case was summarized by the undersigned in an order
issued in response to Complainant’s motion seeking an order to show cause. That order is reproduced here
as part of the factual predicate underlying this decision.
By motion dated March 25, 2003, Complainant sought an “order to
show cause” to be served by the undersigned upon Respondent corporation
directing that entity to show cause why the notice of contest filed by
Respondent should not be dismissed and the citation affirmed. Complainant
asserts that Respondent failed to comply with Commission Rule 32 (Respon­
dent representative’s failure to sign its answer), Rule 6 (Respondent’s failure
to provide the name, current address and telephone number of its Representa­
tive) and Rule 23 (failure to file a notice of appearance). In addition,
Complainant asserts that it has been unable to comply with the order issued by
the Commission that the parties engage in settlement discussions because
Respondent has failed to designate an individual to represent its interests in
this matter. For these reasons, Complainant requests that Respondent be
declared in default. In the alternative, Complainant sought a continuance of
the hearing scheduled to commence April 23, 2003.

               The following alleged facts have been gleaned from the various
       documents filed by the parties. Respondent is a corporation with Kil Soo Lee
       as President and sole stockholder. Mr. Lee, who is Korean and does not speak
       or understand the English language, was engaged as Respondent’s principal
       owner in the garment manufacturing business at Tafuna, Pago Pago, American
       Samoa. During November 2000, an outbreak of violence occurred at
       Respondent’s worksite which resulted in a criminal indictment issued against
       Mr. Lee in the United States District Court for the District of Hawaii.2

               Also in response to the outbreak, the Occupational Safety and Health
       Administration conducted an inspection of Respondent’s worksite and, on
       May 24, 2001, issued various citations to Respondent Corporation. A timely
       notice of contest was filed and a complaint and answer have been filed with
       this Commission. At Complainant’s request, over the strong objection of
       Respondent, this matter was stayed by order dated October 17, 2001, pending
       the resolution of the criminal proceeding against Mr. Lee. As far as can be
       determined from the record of this matter, all documents generated by
       Complainant and the Commission have been served upon Mr. Lee at the
       Federal Detention Center, Honolulu, Hawaii, and Mr. Alexander Silvert, Esq.,
       Mr. Lee’s public defender for the criminal proceeding, also located at



       2
           The indictment alleged that Mr. Lee engaged in involuntary servitude, extortion and money laundering.

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Honolulu, Hawaii.3 Respondent’s submission to the Commission dated
April 4, 2003 states that “Respondent” (presumably Mr. Lee) is indigent and
has no assets and “the factory and all of the property belonging to Daewoosa
Samoa has been seized and belongs to the American Samoa government.”
(footnote 3, page 5).

             On February 21, 2003, Mr. Lee was convicted of eleven counts of
     involuntary servitude as well as extortion and money laundering. He will be
     sentenced during July 2003 and is subject to as much as 250 years in prison.
     (Affidavit of Cheryl Adams, Esq., Complainant’s attorney dated March 25,
     2003.) By order dated February 4, 2003, the undersigned vacated the stay of
     proceedings in this case and by order of the same date, scheduled a trial herein
     to commence April 23, 2003 at Pago Pago, Samoa. As previously stated,
     Complainant filed a motion dated March 25, 2003, seeking an “order to show
     cause” to be issued to Respondent which was issued on April 1, 2003,
     directing Respondent to show cause why its notice of contest should not be
     dismissed for failure to comply with Commission Rules 6, 23, 32, and 35. In
     addition, the hearing scheduled to commence April 23, 2003 was continued
     sine die. The order to show cause was served upon Mr. Lee at the Federal
     Detention Center and his public defender, Alexander Silvert, Esq.

             By letter dated April 4, 2003, Respondent filed a response to the order
     to show cause. Although this document purports to be signed by Kil Soo Lee,
     it was transmitted under the Federal Public Defender letterhead and was
     clearly authored by an individual conversant in the English language and
     knowledgeable about the practice of law (hereinafter referred to as the public
     defender response). On the other hand, two handwritten documents have been
     received by the undersigned in response to the order to show cause also signed
     by Kil Soo Lee. . . .

              The order to show cause directed Respondent to show cause why the
     notice of contest should not be dismissed because of its failure to comply with
     certain procedural rules of the Commission. As pointed out by the public
     defender response, Respondent has complied with all substantive rules to date
     and should not be denied its right to a hearing because of its inability to
     comply with procedural requirements. Moreover, Complainant has been
     aware that Mr. Lee was the principal owner of Respondent as well as his
     location at all times relevant to this matter. Although Mr. Lee has been in
     prison since the inception of this matter, Respondent Daewoosa Samoa Ltd.,
     through its representative, Mr. Lee, has demanded an immediate trial of this
     case. Since Respondent Daewoosa has consistently insisted upon exercising
     its right to a hearing, Complainant’s motion to dismiss the notice of contest is
     DENIED and by separate order, this matter will be set for trial.



     3
       Mr. Silvert agreed to accept service of documents in this matter which he forwards to Mr. Lee. Mr. Silvert

has not filed an appearance in this matter as Respondent’s representative.

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In general, hearings in Commission cases are schedule as close to the
location of the alleged violations as possible to allow exposed employees an
opportunity to testify. In this case, Respondent’s President is located, and
likely to remain, at the Federal Detention Center in Hawaii. Mr. Lee requests
that the hearing be held at that location. However, acceding to his request
would create a hardship for exposed employees located at Samoa who wish to
testify. Since the Act is intended to protect the safety and health of employees,
the interest of those employees to testify will take precedence over the desire
of Respondent corporation’s President to attend the hearing in Hawaii.
Accordingly, by separate order, the place of hearing has been designated as
Pago Pago, American Samoa. However, a testimonial deposition of Mr. Lee,
if otherwise admissible, will be accepted as part of the record.

               The remaining issue is whether an individual will appear at the hearing
      as Respondent Corporation’s representative. As pointed out by Complainant,
      no individual, other than Mr. Lee, has been designated as Respondent’s
      representative for purposes of attempting to settle the case or trial preparation.
      Since the matter has been set for trial at American Samoa, it will be an
      expensive exercise for the Complainant’s representatives and the undersigned
      to travel to that location if no individual appears on Respondents’ behalf.
      Accordingly, Respondent corporation is directed to notify the undersigned no
      later than May 23, 2003 of the name and address of the person(s) who will
      appear at the hearing to represent Respondent’s interests. That person is
      directed to file an affidavit with the undersigned no later than June 6, 2003,
      that he will appear at the hearing as Respondent’s representative. In the event
      that a representative has not been designated by Respondent or said represen­
      tative fails to file the required affidavit, Respondent’s notice of contest will be
      dismissed and citation affirmed.

   By separate order, the matter was set for trial to commence July 14, 2003 at Pago Pago, American

Samoa. By letter dated May 9, 2003, Mr. Kil Soo Lee requested a postponement of the hearing in order

to obtain representation for Respondent. By order dated June 2, 2003, the July hearing was rescheduled

to commence on August 18, 2003 and Mr. Lee was directed to disclose the name of Respondent’s trial

representative no later than July 11, 2003. By order dated June 16, 2003, Mr. Lee was, once again,

directed to disclose the identity of Respondent’s trial representative. All of the aforesaid documents were

served upon Mr. Lee at the Federal Detention Center, Honolulu, Hawaii.

   On July 7, 2003, the undersigned received the following documents from Respondent’s President



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Kil Soo Lee:

   (a)     Statement of Kil Soo Lee consisting of five typewritten pages. The document appears to
           be a rambling recitation of events that occurred at Respondent’s place of business which
           are unrelated to the merits of the instant case. The subject line of the document identifies
           Mr. James Fond as Respondent’s “legal receiver.” The document fails to identify
           Respondent’s representative who will appear at the hearing in this matter.

   (b)     Statement of Kil Soo Lee. This document consists of four typewritten pages and contains
           allegations relating to “rape, assault, false accusations of affidavit, illegal strike and
           conspiracy.” The document contains nothing relating to the merits of this case nor is the
           identity of Respondent’s representative disclosed.

   (c)     Additional statement of Kil Soo Lee. This document consists of two typewritten pages and
           appears to relate to a criminal investigation of Respondent’s place of business. The
           document contains nothing relevant to this case nor is Respondent’s representative
           disclosed.

   (d)     Affidavit of Kil Soo Lee. This documents consists of five typewritten pages and is a
           rambling, incoherent statement of events which occurred at Respondent’s worksite. The
           document fails to identify Respondent’s representative who has been designated to appear
           at the hearing in this matter.

   (e)     A six-page typewritten document entitled “Statement of Kil Soo Lee” addressed to Cheryl
           Adams, Esq., Solicitor’s Office, U.S. Department of Labor, containing information which
           appears to relate to a wage-hour investigation of Respondent’s worksite conducted by the
           Department of Labor. The document contains nothing relevant to this case nor is
           Respondent’s representative disclosed.

   Based upon the aforesaid submissions, it is clear that Respondent has not designated an individual

to represent Respondent at the scheduled hearing in violation of the order dated June 16, 2003. Since no

individual will appear to represent Respondent at the hearing, it will be an expensive and useless exercise

to require the Secretary’s Counsel, the witnesses and the undersigned to travel to Pago Pago, American

Samoa simply to default Respondent for its failure to appear. Accordingly, pursuant to Commission Rule

41, in light of Respondent’s failure to designate a representative to appear at the hearing, Respondent’s

notice of contest dated June, 14, 2001 is vacated and the citations and proposed penalties, as written, are

AFFIRMED.

                            Findings of Fact and Conclusions of Law



                                                5

Findings of fact and of law relevant and necessary to a determination of all issues have been made

above. All proposed findings of fact inconsistent with this decision are hereby denied.

                                         /s/
                                         Robert A. Yetman
                                         Judge, OSHRC

Dated: August 4, 2003

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