JGB LLC d/b/a General Fire-Proof Door Corp

Plain-English summary

The chief administrative law judge entered a default judgment against JGB after the company failed to comply with an order compelling discovery responses. That judgment affirmed citations alleging numerous general industry violations, primarily involving machine guarding, and assessed $70,750 in penalties. JGB petitioned for Commission review but then neither filed an opening brief nor explained that it did not intend to file one, despite a briefing notice requiring a response. The Commission held that self-represented parties must still follow its procedural rules and treated JGB's continued inaction as a lack of intent to participate. It vacated the direction for review, leaving the default judgment as the final order.

Decision snapshot

• Cited standard(s): No specific OSHA standard is identified in the Commission order.
• Outcome: The direction for review was vacated, and the default judgment affirming $70,750 in penalties became final.
• Key point: A self-represented employer can lose Commission review by failing to respond to a briefing notice without explanation.

Full text (OSHRC public release)

JGB d/b/a General Fire-Proof Door Corp., Docket Nos. 04-2153 & 04-2154

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 04-2153 & 04-2154

JGB LLC d/b/a General Fire-Proof DoorCorp.,

Respondent.

APPEARANCES:

Daniel J. Mick, Esq., U.S. Department of Labor, Washington, D.C.

For the Complainant

Rubin Kuszel, pro se , General Manager, General Fire-Proof Door, Bronx, New York

For the Respondent

ORDER

Before: RAILTON, Chairman, and ROGERS, Commissioner.

BY THE COMMISSION:

On August 17, 2005, Chief Judge Irving Sommer granted the Secretary’s motion
for sanctions based on the failure of JGB LLC d/b/a/ General Fire-Proof Door Corp.
(JGB), appearing pro se , to comply with the judge’s order directing the company to
respond to the Secretary’s discovery requests. The judge entered a default judgment
against JGB, affirming the citations issued by the Secretary, which alleged numerous
general industry standard violations primarily with regard to machine guarding, and
assessing the total proposed penalty of $70,750.

After being found in default for failure to comply with the judge’s discovery order,
JGB, again appearing pro se , filed a timely petition for discretionary review of the judge’s
decision. The Commission’s subsequent briefing notice, issued on October 27, 2005,
instructed the parties to file opening briefs within 30 days of the date of the notice. The
notice also specifically stated that “[a] party who does not intend to file a brief must
notify the Commission in writing, setting forth the reason therefore within the applicable
time for filing briefs, and shall serve a copy on all other parties.” The Secretary filed a
timely brief with the Commission. The deadline for filing a brief has passed. To this
date, JGB has neither filed a brief nor notified the Commission of its intent not to do so.

Under Commission Rule 93(d), 29 C.F.R. § 2200.93(d), “[i]f a petitioning party
fails to respond to a briefing notice or expresses no interest in review, the Commission
may vacate the direction for review, or it may decide the case without that party’s brief.”
See, e.g. , Honey Creek Contracting Co. , 1998 CCH OSHD ¶ 31,701 (Nos. 97-0353 & 97-0462, 1998) (direction for review vacated where Respondent failed to respond to briefing
notice and Secretary’s motion); Pride Petroleum Services , 1993-95 CCH OSHD ¶ 30,619
(No. 92-3382, 1994) (direction for review vacated where Respondent failed to respond to
briefing notice and Commission’s show cause order); D.A. & S. Oil Well Servicing, Inc. ,
1987 OSAHRC LEXIS 182 (No. 85-604, 1987) (direction for review vacated where
Respondent failed to file timely brief); see also Imageries , 15 BNA OSHC 1545, 1547,
1991-93 CCH OSHD ¶ 29,639, p. 40,131 (No. 90-378, 1992) (Commission deciding a
case without the petitioning party’s brief and finding that the pro se employer’s failure to
respond, both before the Commission and the judge, meant that the record lacked any
basis “upon which the Commission can rely to grant Imageries relief from the judge’s
order”).

JGB’s continuing inaction signals that it has no intention of participating in this
proceeding in the manner offered by the Commission. While parties appearing pro se
may “require additional consideration of their circumstances[,]” such litigants “are not
exempt from following Commission rules and procedures that require all litigants to take
some action or suffer a penalty.” Imageries , 15 BNA OSHC at 1547, 1991-93 CCH
OSHD at p. 40,131 (emphasis in original). Because JGB has failed to act on that
opportunity with no explanation for its inaction, we exercise our discretion to vacate the
direction for review.  

Accordingly, the direction for review is vacated due to JGB’s failure to respond to
the briefing notice. The administrative law judge’s decision is a final order.

SO ORDERED.

/s/____

W. Scott Railton

Chairman

/s/______

Thomasina V. Rogers

Commissioner

Dated: February 2, 2006  

SECRETARY OF LABOR,

Complainant,

v.

Docket Nos. 04-2153 & 04-2154

JGB LLC d/ba GENERAL FIRE-PROOF
DOOR CORP.,

Respondent.

ORDER

Motion by the Secretary for an order imposing sanctions on the Respondent for failure to
comply with the Order of the undersigned, dated July 19, 2005 directing response to the
Secretary̓s discovery requests.

The Secretary served upon the Respondent on April 29, 2005 its First set of
Interrogatories and First request for Production of Documents. Upon receiving no response, on
June 29, 2005 the Secretary moved the undersigned for an order to compel the Respondent to
respond.

On July 17, 2005, I issued an order to the Respondent directing him to comply with all
discovery requests made. The Respondent did not respond.

By making no attempt to comply, nor in any way asserting they lacked the ability to
comply with my order fully demonstrates a wilful determination not to. Such flagrant and wilful
intransigence calls for the severest sanction.

Accordingly, the notice of contest in the captioned cases is dismissed, the Respondent is
held in DEFAULT, and the citations in both cases captioned above are AFFIRMED as issued.

IRVING SOMMER

Chief Judge

DATED: August 29, 2005

Washington, D.C.