Kevin Dallas Roofing

Plain-English summary

Kevin Dallas Roofing, a sole proprietor in Ohio, was inspected by OSHA and issued a serious citation and an other-than-serious citation totaling $1,650 in proposed penalties. The employer contested the inspection by letter, but then did not participate in the scheduled pre-hearing conference call and did not respond to the judge's order to show cause, which was mailed to the address he had provided. The judge found the employer had received the mailings and due notice, and declared him in default under Commission Rule 41(a) for failing to proceed. The notice of contest was dismissed and all citation items were affirmed with the proposed penalties assessed. This is a procedural default ruling, not a decision on whether the safety violations actually occurred.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(b)(2)(i), 1926.501(b)(13), 1926.1053(b)(1), 1926.1200(e)(1), 1926.152(a)(1)
• Outcome: Employer declared in default; notice of contest dismissed; all citation items affirmed ($1,650 in penalties).
• Key point: An employer that files a notice of contest but then fails to participate or respond to a show-cause order can be declared in default, losing the contest without a hearing on the merits.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                    1120 20th Street, N.W., Ninth Floor
                      Washington, D.C. 20036-3419

SECRETARY OF LABOR,

            Complainant,
                    v.                                    OSHRC DOCKET NO. 01-1369

KEVIN DALLAS ROOFING,

              Respondent.


                       DECISION AND ORDER OF DEFAULT

Factual Background
This proceeding arises under the Occupational Safety and Health Act of 1970, 29 U.S.C.
§651, et. seq. On June 6, 2001, the Occupational Safety and Health Administration conducted a
safety inspection at Respondent’s worksite located at Century Manors on Brunnersdale Avenue,
NW., Jackson, OH. As a result of that inspection, on June 18, 2001, Respondent was issued one
serious citation and one other-than-serious citation, with a total proposed penalty in the amount
of $1,650.00. In a letter received in the Cleveland OSHA Area Office on July 17, 2001,
Respondent, Kevin Dallas, objected to the subject inspection. Respondent’s letterhead indicated
that its address was 4721 Grant Street, Mineral City, Ohio 44654. The Area Office notified
Respondent in a letter dated July 18, 2001, that its objection was accepted as a notice of contest
and the letter was forwarded to the Review Commission, and docketed on August 6, 2001. On
August 6, 2001, counsel for Complainant forwarded to the Review Commission and Respondent
a Complaint. On September 17, 2001, the Review Commission received a letter from
Respondent dated September 6, 2001, wherein Respondent again objected to the legality of the
subject inspection.
On September 14, 2001, the Chief Judge assigned this matter to the undersigned for E-Z
Trial. On September 18, 2001, the undersigned issued the parties in this matter an E-Z Trial
Notice and Scheduling Order which scheduled a telephonic pre-hearing conference for Monday,
October 29, 2001 at 9:30 am. In preparation for this conference call and in light of the fact that
Respondent is pro se, Wednesday, October 24, 2001, Georgiana Jones, the administrative
assistant of the undersigned, called the telephone number which counsel for Complainant had
provided the Commission, to advise Respondent of the same. At that time Ms. Jones was
advised that she had the wrong number for Respondent. She again attempted to call this same
number on Thursday, October 25, 2001, however, the only response to this number was an
answering machine which repeated the number called (330-859-8000) and provided no other
identifying information. On Monday, October 29, 2001, Ms Jones called this same telephone
number in preparation for the scheduled pre-trial conference call. At that time a woman
answered and advised Ms. Jones that Respondent lived at this location and had left to go to work
very early that day. She stated that she was completely unaware of this matter, and expressed no
interest in participating in the call.
In view Respondent’s failure to participate in the scheduled pre-trial conference call or
have someone available to act on his behalf at the scheduled time, the undersigned ordered
Respondent to show cause within 10 working days of receipt the Order why he did not comply
with this Court’s September 18, 2001 Order, and should not be declared in default. Respondent
was advised that failure to respond to this Order would indicate a lack of interest in pursuing its
notice of contest. Respondent was further advised that failure to comply with this order will
result in the dismissal of its notice of contest, the citation affirmed, and the penalties assessed.
See Review Commission Rule 41(a), 29 C.F.R. §2200.41(a). This Order to Show Cause, was
sent by first class mail, and certified mail with return receipt on October 29, 2001.
The certified letter was returned to the Commission, with the following notations from
the Postal Service: the word "unclaimed" had been rubber-stamped; and this chronology with the
dates hand-written --"1st Notice 10-31; 2nd Notice 11-05; Return 11-15." The address on both
the first class mail letter and the certified letter were the same as that provided initially by
Respondent in his notice of contest letter. The Order to Show Cause which was also mailed via
first class mail has not been returned, and the undersigned has received no other communication
from Respondent.

Discussion
Rule 41(a) of the Commission’s Rules of Practice, 29 C.F.R. 2200.41(a), in pertinent part
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 in default . . . (1)
on the initiative of the . . . Judge, after having been afforded an opportunity to
show cause why he should not be declared in default . . . thereafter, ... Judge, in
[her] discretion, may enter a decision against the defaulting party . . .
There is no evidence in the record that indicates that Respondent has not received any of the
Commission’s prior mailings. In absence of evidence to the contrary, it is reasonable to presume
that the Postal Service officials properly discharged their duties. See Powell v. Commissioner,
958 F.2d 53,54 (4th Cir. 1992). A judge has very broad discretion in imposing sanctions for
noncompliance with Commission Rules of Procedure or the judge’s orders. See Sealite Corp., 15
OSHC BNA 11130, 1134 (No. 8801431, 1991). In view of the record before me, the
undersigned finds that the Respondent has received all documents forwarded to him in this
matter, and that Respondent has been given due notice and an opportunity to respond to my
Order to Show Cause. The undersigned further finds that Respondent has failed to respond to her
October 29, 2001, Order to Show Cause. Respondent has not responded, and has offered no
reason for not complying.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

                                   ORDER
   Based on the foregoing decision, Respondent is declared in DEFAULT, and his notice of

contest is DISMISSED, and the citations issued in this matter are AFFIRMED.
Serious Citation 1, Item 1, 29 C.F.R. §1926.451(B)(2)(i) is AFFIRMED, and a penalty of
$600.00 is assessed.
Serious Citation 1, Item 2, §1926.501(b)(13) is AFFIRMED, and a penalty of $450.00 is
assessed .
Serious Citation 1, Item 3, §1926.1053(b)(1) is AFFIRMED, and a penalty of $600.00 is
assessed .
Other Citation 2, Item 1a, §1926.1200(e)(1) is AFFIRMED, and a penalty of $0.00 is
assessed .
Other Citation 2, Item 1b, §1926.152(a)(1) is AFFIRMED, and a penalty of $0.00 is
assessed.

SO ORDERED.

Dated: Dec. 6, 2001 /s/
Washington, DC. COVETTE ROONEY
Judge, OSHRC