Samuel Filisko d/b/a Associated Contractors Group

Plain-English summary

A judge entered default against Associated Contractors Group after the pro se employer filed a late answer and did not respond to a show-cause order, affirming citations with $141,000 in proposed penalties. The service certificate misspelled the company address, and postal tracking showed that the order went unclaimed and returned to Washington. The Commission found no proof that the employer received proper service, no prejudice to the Secretary, and no contumacious conduct or pattern of disregard. The employer later filed an answer denying all charges, which showed that it had not abandoned the case. The default was set aside and the matter was remanded so the employer could explain the late filing.

Decision snapshot

• Cited standard(s): None specified in this default-relief order.
• Outcome: The $141,000 default judgment was set aside and the case was remanded.
• Key point: Default is too harsh when service of the show-cause order is uncertain and the record shows only a late answer, without prejudice or repeated misconduct.

Full text (OSHRC public release)

Samuel Filisko DBA Associated Contractors Group, Docket No. 04-1465

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-1465

SAMUEL FILISKO DBA

ASSOCIATED CONTRACTORS GROUP

Respondent.

DIRECTION FOR REVIEW AND REMAND ORDER

A default judgment was issued against Samuel Filisko dba Associated Contractors
Group (ACG) for failure to file a timely answer to the Secretary’s complaint or respond to
Chief Administrative Law Judge Irving Sommer’s subsequent Order to Show Cause.
ACG is a pro se employer cited for fall protection, training, and hardhat violations.
Proposed penalties for the serious, willful, repeat, and other-than-serious citations total
$141,000. For the reasons that follow, we direct this case for review, set aside Judge
Sommer’s decision, and remand this case for further proceedings in a manner consistent
with this opinion.

Procedural Background

The Secretary’s initial citation and notification of penalty, issued on August 11,
2004, listed two addresses for ACG: (1) the location of the work site where the
inspection occurred at “5109 W. Lake Street, Melrose Park, IL 60160”; and (2) ACG’s
business address at “501 Morse, Unit F, Schaumburg, IL 60193.” On September 2, 2004,
ACG President Samuel Filisko filed a timely notice of contest, and on September 22,
2004, the Secretary filed her complaint and certified that a copy of the complaint was sent
“via certified mail, return-receipt requested” to “Samuel S. Filisko, A.C.G. 501 Morse
Unit F, Schaumburg, IL 60193.” The case file does not contain a copy of the return-receipt, but ACG admits receipt of the complaint in its untimely-filed answer.

On November 1, 2004, forty days after the complaint was filed, the judge issued a
Order to Show Cause “why Respondent should not be declared to be in default and the
citation(s) and penalties should not be affirmed due to its failure to file an answer.” The
Certificate of Service attached to the order shows that a copy was sent by certified mail,
return-receipt requested to ACG, with spelling errors in both the company president’s
name and the company’s street address. The case file contains neither a signed return-receipt to establish that ACG received the Order to Show Cause nor a returned envelope
to show whether delivery was attempted at the correct address. A United States Postal
Service (USPS) “Track & Confirm” record available at the USPS website shows the
following chronological details based on the certified mail tracking number of the item:

·     ACCEPTANCE, November 01, 2004, 4:10 pm, WASHINGTON, DC
20036

·     NOTICE LEFT, November 04, 2004, 11:01 am, SCHAUMBURG, IL
60193

·     UNCLAIMED, November 20, 2004, 2:55 pm. SCHAUMBURG, IL

·     UNCLAIMED, November 20, 2004, 3:08 pm, SCHAUMBURG, IL

·     ARRIVAL AT UNIT, November 29, 2004, 11:00 am, WASHINGTON,
DC 20037

·     “Your item was delivered [sic] at 2:59 pm on November 29, 2004 in
Washington, DC 20036”

On December 17, 2004, the judge issued a Notice of Decision to the parties,
notifying them that he was dismissing ACG’s notice of contest and affirming the citation
and proposed penalties on the grounds that ACG’s failure to file an answer or respond to
his Order to Show Cause “demonstrate either that he has abandoned the case or treats the
Rules of Procedure of the Commission with disdain.” On December 27, 2004, the judge
submitted his decision to the Commission’s Executive Secretary for docketing.

Also on December 27, 2004, the office of the Chief Administrative Law Judge
stamped ACG’s untimely answer as received at 4:54 p.m. The answer was submitted on
ACG’s company letterhead, dated December 10, 2004, and signed by ACG President
Filisko. It states that it “is an answer to the complaint filed against Associated
Contractors Group, Inc.” and it denies all charges. The case file does not contain a
postmarked envelope in which the answer was sent. The Commission construes the
untimely answer as a petition for discretionary review.

Discussion

Commission Rule 41(a), 29 C.F.R. § 2200.41(a), permits the sanction of default
for failure to plead and for failure to proceed as required by a Commission judge.

The
Commission has held 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)
( AGM ) (citing Philadelphia Construction Equipment Inc. , 16 BNA OSHC 1128, 1131,
1993-95 CCH OSHD ¶ 30,051, 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 this case, the Secretary has not claimed that ACG’s late filing of its answer or
its failure to respond to the judge’s show cause order prejudiced her.

Nor does ACG’s
conduct on the record before us demonstrate contumacy or a pattern of disregard for
Commission proceedings. Given the misspelling of the company’s street name on the
Certificate of Service for the show cause order, as well as the lack of either the return-receipt or the envelope with the original show cause order, it cannot be determined
whether ACG ever received proper service of the judge’s order. Without a response to
the show cause order, it also cannot be determined whether the company has a reasonable
basis for the untimely filing of its answer. Therefore, with only ACG’s failure to file a
timely answer before him, and no indication on the record that ACG had received his
show cause order, we see no basis for the judge’s conclusion that ACG either “has
abandoned the case or treats the Rules of Procedure of the Commission with disdain.”

We further note that ACG has since filed its answer denying all charges, and thus
has not abandoned this case. ACG 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, Inc. , 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, ACG should be afforded an opportunity to explain the reasons for the late
filing of its answer as required by Rule 41(a), since it is not clear from this record that
such an opportunity was provided. Moreover, although ACG’s reasons for its late filing
are not known, 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. See AGM , 19 BNA OSHC at 1548, 2002 CCH OSHD at p. 49,976 (concurring
opinion) (sanctions must be proportionate to the misconduct for which they were
imposed). Accordingly, we set aside the judge’s dismissal 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

Commissioner

Dated: January 21, 2005

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

V.

OSHRC DOCKET NO. 04-1465

SAMUEL FILISKO

Respondent.

ORDER

On 11/01/04 the undersigned issued an ORDER TO SHOW CAUSE to the Respondent as to
why his Notice of Contest should not be dismissed for failure to file an answer to the complaint
as required by the Commission Rules of Procedure. The Respondent failed to reply to the
ORDER. His actions demonstrate either that he has abandoned the case or treats the Rules of
Procedure of the Commission with disdain. This cannot be countenanced as it seriously
impedes the administration of justice.

Accordingly, the Notice of Contest filed by the Respondent is dismissed. The Secretary's
citation(s) and proposed penalties are AFFIRMED in all respects.

IRVING SOMMER

Chief Judge

DATE: December 27, 2004

Washington, D.C.