AA Plumbing, Inc.

Plain-English summary

A judge entered default against AA Plumbing after the pro se employer did not answer the Secretary's complaint, affirming serious and willful citations with $26,250 in penalties. AA Plumbing told the Commission that it had never received the complaint and learned of the dismissal motion only after filing. The Commission found no evidence that the employer abandoned the case, engaged in contumacious conduct, or caused prejudice through the late answer. It also noted that the Secretary failed to confer with the employer before moving for default as required by Commission rules. The default order was set aside and the case was remanded so the employer could explain the filing failure.

Decision snapshot

• Cited standard(s): None specified in this default-relief order.
• Outcome: The $26,250 default judgment was set aside and the case was remanded.
• Key point: A late answer by a pro se employer does not support default without prejudice, contumacious conduct, or a pattern of disregarding Commission proceedings.

Full text (OSHRC public release)

A A Plumbing Inc., Docket No. 04-1299

SECRETARY OF LABOR,

Complainant,

v.

Docket No. 04-1299

A A PLUMBING, INC.,

Respondent.

DIRECTION FOR REVIEW AND REMAND ORDER

In an order dated January 4, 2005, Chief Administrative Law Judge Irving Sommer
granted the Secretary’s motion for default judgment against A A Plumbing, Inc. for its
failure to file a timely answer to the Secretary’s complaint. The judge affirmed serious
and willful citations for violations of standards under the Occupational Safety and Health
Act of 1970, 29 U.S.C. §§651-678 and affirmed total penalties of $26,250. For reasons
that follow, we direct this case for review, set aside Judge Sommer’s order and remand
this case for further proceedings in a manner consistent with this opinion.

Procedural Background

The Secretary issued the citation and notification of penalty on July 9, 2004.
Respondent, appearing pro se, filed a timely notice of contest on August 2, 2004 and the
Secretary filed her complaint on October 5, 2004. On November 29, 2004 after
Respondent failed to file a timely answer to the complaint, the Secretary filed a Motion
To Dismiss Respondent’s Notice of Contest and For Default Judgment. In her motion, the
Secretary failed to follow Commission Rule 40(a), 29 C.F.R. §2200.40(a), which states,
in pertinent part that “Prior to filing a motion, the moving party shall confer or make
reasonable efforts to confer with the other parties and shall state in the motion if any other
party opposes or does not oppose the motion.” Nonetheless, Judge Sommer granted the
motion. On January 21, Respondent filed a letter with this Commission alleging that it
never received the complaint and that it learned of the motion to dismiss only after it had
been filed with the judge. This letter, which we interpret as a Petition for Discretionary
Review, asks the Commission to reverse the default judgment.

Discussion

Commission Rule 41(a), 29 C.F.R. §2200.41(a)

, permits the sanction of default
for failure to plead or otherwise proceed as required by the Commission’s rules or by the
Commission or judge. The Commission has held that a default sanction may be
appropriate “where a party displays a ‘pattern of disregard’ for Commission
proceedings.” Architectural Glass & Metal Co. , 19 BNA OSHC 1546, 1547, 2001 CCH
OSHD ¶32,424, p. 49,975 (No. 00-0389, 2001)(citing Philadelphia Construction
Equipment Inc., 16 BNA OSHC 1128, 1131, 1993-95 CCH OSHD ¶39,051, p. 41,295
(No. 92-899, 1993)). The Commission has also held that “dismissal of a citation is too
harsh a sanction for failure to comply with certain prehearing orders unless the record
shows contumacious conduct by the noncomplying party or prejudice to the opposing
party.” Id., and cases cited therein. Under Rule 41(b), 29 C.F.R. §2200.41(b)

, a default
sanction may be set aside “for reasons deemed sufficient by the Commission or Judge.”

In her Motion to Dismiss, the Secretary contended that Respondent either
abandoned the case or exhibited “disdain” for Commission proceedings amounting to
contumaciousness. The judge made no findings in response to these claims, and we find
no evidence here that would support a default sanction. Respondent’s Petition for
Discretionary Review demonstrates that it did not abandon the case. Finally, the Secretary
does not claim that she was prejudiced by Respondent’s failure to file a timely answer.

A A Plumbing is a pro se employer, and the Commission has long recognized that,
generally speaking, employers appearing pro se are “often confused by legal terminology
and may not be fully cognizant of the legal technicalities of the judicial process.” Action
Group, 14 BNA OSHC 1934, 1935, 1987-90 CCH OSHD ¶ 29,166, p. 39,018 (No. 88-2058, 1990), and cases cited therein. Under these circumstances, Respondent should be
given an opportunity to explain to the judge the reasons for its failure to file a timely
answer. We note that the late filing alone, without evidence of prejudice, contumacious
conduct and/or a pattern of disregard for Commission rules, would not be a basis for
dismissing this case. Samuel Filisko d/b/a/ Associated Contractors Group, Docket No.
04-1465 (January 21, 2005). This is especially true where, as here, the situation was
exacerbated by the Secretary’s own failure to follow the requirements of Commission
Rule of Procedure 40(a), 29 C.F.R. §2200.40(a). Accordingly, we direct this case for
review, set aside the judge’s order and remand this case to him for further proceedings.

SO ORDERED.             

/s/______

W. Scott Railton

Chairman

/s/______  

James M. Stephens

Commissioner

/s/_____

Thomasina V. Rogers  

Dated: February 3, 2005                                       Commissioner

SECRETARY OF LABOR,

Complainant,

v.

Docket No. 04-1299

A A PLUMBING, INC.,

Respondent.

ORDER

Motion by the Secretary to Dismiss Respondent’s Notice of Contest and for
Default Judgement was issued on November 29, 2004. There was no response from the
Respondent.

Motion granted. The Respondent’s notice of contest is dismissed and the citations
issued herein are AFFIRMED AS ISSUED.

/s/

IRVING SOMMER

Chief Judge

DATED:       30 Dec 2004

Washington, D.C.