Conti Carlucci Construction, Inc.

Plain-English summary

OSHA cited Conti & Carlucci Construction for several construction-standard violations and proposed $119,000 in total penalties. The parties stated at the scheduled hearing that they had reached a settlement, but the employer did not return the written agreement and stopped responding to its own counsel despite repeated calls and letters. The Secretary moved to dismiss the notice of contest. The chief judge found that the employer's conduct showed it was unlikely to participate in further proceedings and that dismissal was an appropriate sanction. He dismissed the contest and affirmed the citation in all respects.

Decision snapshot

• Cited standard(s): No specific OSHA standard is identified in the decision.
• Outcome: The notice of contest was dismissed, and the citation with $119,000 in proposed penalties was affirmed in all respects.
• Key point: An employer's sustained failure to participate after announcing a settlement can justify default and dismissal of its notice of contest.

Full text (OSHRC public release)

                                     United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                               1120 20th Street, N.W., Ninth Floor
                                  Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 05-0098
:
CONTI & CARLUCCI :
CONSTRUCTION, INC., :
:
Respondent. :

Appearances:

            Margaret A. Temple, Esquire                    John P. Ruggiero, Esquire
            U.S. Department of Labor                       Canfield, Madden & Ruggiero, LLP
            New York, New York                             Garden City, New York
            For the Complainant.                           For the Respondent.

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

      This matter is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). On June 3, 2004, the Occupational Safety and Health Administra­
tion (“OSHA”) inspected a work site of Respondent; as a result, on December 2, 2004, OSHA issued
to Respondent a citation alleging various violations of OSHA’s construction standards and proposing
a total penalty of $119,000.00. Respondent contested the citation and proposed penalty, and this
matter was set for a hearing on September 14, 2005. At the hearing, the Secretary’s counsel advised
the undersigned the parties had settled this matter the day before, and counsel read the terms of the
settlement into the record. (Tr. 3-5). On September 23, 2005, the Secretary’s counsel sent the agreed-
to settlement document to Respondent’s counsel. On October 7, 2005, the Secretary’s counsel spoke

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to Respondent’s counsel, who said he had signed the agreement and sent it for signature to his client,
who was to return it to the Secretary with a check by overnight mail. The Secretary’s counsel spoke
to Respondent’s counsel again on October 14, 2005, to ask why she had not yet received the signed
agreement, and Respondent’s counsel said he would call his client and inquire about the delay. On
October 26, 2005, Respondent’s counsel advised the Secretary’s counsel that his client had not
returned his calls and that he would write a letter requesting that the client return the agreement to
the Secretary. On November 3, 2005, Respondent’s counsel informed the Secretary’s counsel that
despite various phone calls and letters, his client had not contacted him. The Secretary filed a motion
to dismiss Respondent’s notice of contest in this matter on November 4, 2005.1
Discussion
As the Secretary points out, Commission Rule 101(a) provides for a default judgment to be
entered against a party who has failed to plead or otherwise proceed as provided by Commission
Rules or as required by the Commission or Judge. See 29 C.F.R. 2200.101(a). As the Secretary also
points out, the Commission has held that, where a party displays a pattern of disregard for
Commission procedures, dismissal may be an appropriate sanction. See Philadelphia Constr. Equip.,
Inc., 16 BNA OSHC 1128, 1131 (No. 92-899, 1993). See also Caterpillar, Inc., 17 BNA OSHC
1507, 1509-10 (No. 94-347, 1996).
I agree with the Secretary that, based on its course of conduct in this matter, it is unlikely that
Respondent will participate further in this matter or appear at a rescheduled hearing. I also agree that
dismissal of Respondent’s notice of contest is the appropriate sanction in this case. Respondent’s
notice of contest is accordingly DISMISSED, and the citation is AFFIRMED in all respects. So
ORDERED.

                                                    /s/
                                                    Irving Sommer
                                                    Chief Judge

Dated: December 12, 2005
Washington, D.C.

   1
    The facts and circumstances of this case are set out in an Affidavit of the Secretary’s

counsel that is included with the Secretary’s motion.

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