Arch-Tech Construction

Plain-English summary

OSHA issued Arch-Tech Construction a two-item serious citation with proposed penalties totaling $7,956. An administrative law judge declared the company in default after it repeatedly missed telephone conferences, failed to answer the complaint, and did not respond to a show-cause order. In its petition for review, the company's owner attributed the failures to confusion during the COVID-19 pandemic, difficulty reaching the Secretary's counsel, and a belief that courts were closed and the citation might be withdrawn. The Commission found the default sanction appropriate on the record then before the judge, but held that the owner's new claims warranted reconsideration in light of the pandemic's unprecedented circumstances. It remanded without deciding whether those claims were true or whether dismissal should remain in place.

Decision snapshot

• Cited standard(s): The decision identifies only unspecified construction standards in 29 C.F.R. Part 1926.
• Outcome: The default dismissal and affirmance of $7,956 in proposed penalties were remanded to the judge for reconsideration.
• Key point: A default that was justified on the existing record may still require reconsideration when a party presents specific claims that unprecedented pandemic conditions caused its failure to participate.

Full text (OSHRC public release)

Arch-Tech Construction OSHRC Docket No. 19-1922

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 1 9-1922

ARCH-TECH CONSTRUCTION ,

Respondent.

R EMAND
ORDER

Before: SULLIVAN , Chairman; ATTWOOD and
LAIHOW , Commissioners.

BY THE COMMISSION:

On July 1, 2020,
Administrative Law Judge
William S. Coleman
issued
an
order
finding Respondent in default,
dismissing its notice of contest, and affirming the underlying two-item serious citation
issued by the Occupational Safety and Health Administration.

For the following reasons,
we
remand this case for
the judge to
reconsider
his order
in light of
claims
made by
Respondent
in its petition for discretionary review.

Specifically,
Respondent’s owner
(appearing pro se)
claims
that
he
did
not call in
for
several
telephone conferences
scheduled by the judge
because of the ongoing COVID-19 pandemic and
his
belief
after
hearing
the Governor of Massachusetts
(where
the
OSHA
Regional Solicitor’s Office
handling this
matter
is located)
say
on the news that
all courts were closed. According to Respondent,
he
attempted to call
in
for a
scheduled
telephone conference
on one occasion
but
did not receive a response and could not reach anyone to assist him. Additionally, he stated in his
petition for
discretionary review that he was under the belief that
the citation would be withdrawn. He
also
claims
that,
after last speaking with
the
Secretary’s counsel
in
the Regional Solicitor’s Office
by telephone
on
March 9,
2020,
he then tried to reach him on
seven occasions
between March 30 and May 13, 2020,
and never received a response. 1 Due to
his belief that the
“courts” were closed
and
his
repeated
inability to reach anyone on the telephone, Respondent’s owner avers that the pandemic made it
confusing and
“very difficult to know what to do
in these unknown and crazy times that nobody has ever been through or has past experiences with on how to handle . . . .” Finally,
Respondent’s owner
requests the opportunity to establish
the company’s
defense
to the citation
and claims that now
that
he knows the “court is open,” he will appear by telephone or in person as
ordered. 2

Based on the record before the judge
at the time he issued his dismissal order,
we find
it was appropriate for
him
to
impose the sanction of default for
Respondent’s
repeated
failure to
participate in Commission proceedings. See
Commission Rule 101(a), 29 C.F.R. § 2200.101(a)
(“When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or the Judge, the party may be declared to be in default either on the initiative of the Commission or the Judge, after having been afforded an opportunity to show cause why the party should not be declared to be in default, or on the motion of a party.”). It
is well established, however,
that the Commission
“favors deciding cases on their merits,”
and
the circumstances
alleged
in Respondent’s petition for discretionary review—namely, those
surrounding the
ongoing COVID-19 pandemic,
the owner’s
apparent confusion as to who should be contacted to ascertain the status of the case,
and the alleged failure of the Regional Solicitor’s office to respond to
the
Respondent’s telephone calls—warrant
remanding to
the judge
for him
to consider
these
proffered reasons for
Respondent’s
failure
to
participate in these
proceedings. 3
See, e.g.,
DHL Express, Inc. ,
21 BNA OSHC 2179, 2180 (No. 07-0478, 2007);
s ee
Commission Rule 101(b), 29 C.F.R. § 2200.101(b)
(“ For reasons deemed sufficient by the Commission or the Judge  . . . , the Commission or the Judge may set aside a sanction imposed under paragraph (a) of this section.”). 

Accordingly, we remand the case for
the judge to
reconsider
his
order
in light of
the
claims
raised
in Respondent’s petition for discretionary review. 4 In remanding this case for reconsideration,
we
emphasize the
unprecedented
circumstances surrounding the COVID-19
pandemic.

SO
ORDERED .

/s/               

James J. Sullivan, Jr.

Chairman

/s/               

Cynthia L. Attwood

Commissioner   

/s/               

Amanda Wood Laihow

Dated: September 25, 2020   


   Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3419

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET No.
19-1922

ARCH-TECH CONSTRUCTION,

Respondent.

ORDER OF DISMISSAL

Pursuant to Commission Rule 101(a), 29 C.F.R. § 2200.101(a), the Respondent, Arch-Tech Construction, is declared to be in default, and its notice of contest is dismissed, as described below.

Background

On or about October 3, 2019, an official from the Providence, Rhode Island, area office of the Occupational Safety and Health Administration (OSHA) commenced OSHA inspection number 1440641 at a worksite at 46 Curran Road, Cumberland, Rhode Island. As a result of that inspection, on October 30, 2019, OSHA issued a two-item serious citation that alleged violations of certain workplace safety standards codified in 29 C.F.R. Part 1926, and proposing penalties totaling $7,956.

The citation was sent to the Respondent at 57B Rodman Street, Narragansett, Rhode Island 02882. By an email sent on November 25, 2019 from Mr. Eric Borelli to an
official at OSHA’s area office in Providence, the Respondent contested the citation and proposed penalties. OSHA then duly forwarded the contested matter to the Occupational Safety and Health Review Commission (Commission). See
29 C.F.R. §§ 1903.17(a) and 2200.33. On December 11, 2019, the Commission’s Executive Secretary issued a “Notice of Docketing and Instructions to the Employer” that assigned the matter Commission docket number 19-1922.

On January 2, 2020, the Commission’s Chief Judge designated the matter to be resolved under the Commission’s rules for Simplified Proceedings, 29 C.F.R. Part 2200, Subpart M, and assigned the matter to the undersigned Commission Judge for disposition.

On January 8, 2020, the undersigned issued a notice and scheduling order that included a notice of a prehearing telephone conference to be conducted on February 13, 2020. However, before that scheduled telephone conference, the
Complainant filed and served a motion dated January 22, 2020 seeking discontinuance of simplified proceedings. The Respondent
did not
file a response to the motion pursuant to Commission Rule 204(b). 29 C.F.R. 2200.204(b). The Respondent also did not call in for the telephone conference on February 13, 2020. By order dated February 14, 2020, the Complainant’s motion to discontinue
simplified proceedings
was granted and the matter was
ordered to proceed as a conventional case.

The Complainant then timely filed and served his complaint dated March 6, 2020. The Respondent failed to file or serve its answer to the complaint within the 21-day period provided by Commission Rule 34(b). 29 C.F.R. § 2200.34(b). By notice and order dated April 7, 2020, the undersigned scheduled a hearing on the merits to commence on
November 5, 2020 in Providence, Rhode Island, and also provided notice of a telephone conference for April 28, 2020 at 10:30 a.m. EDT to address pre-hearing scheduling matters.

The Respondent did not call in for the April 28, 2020 telephone conference. The attorney for the Secretary reported
that he had last spoken with Mr. Eric Borrelli of the Respondent around mid-March, and that since that conversation he had left voice messages for Mr. Borrelli but had not spoken with him.

The undersigned determined to extend the time for the Respondent to file
and serve its answer or other appropriate responsive pleading
or motion
would
to May 15, 2020 , in view of the
extraordinary national circumstances respecting the COVID-19 pandemic, and considering also that the Respondent was a self-represented party .
An order providing notice of the extension was issued on April 29, 2020, and this order also
scheduled a
pre-hearing telephone conference
to address pre-hearing
scheduling matters for
May 29, 2020, at 11:00 a.m. EDT . The order also contained the following admonition:

The Respondent should note
that the
failure of the Respondent to file a responsive pleading or
appropriate
motion, or to participate in the scheduled telephone conference, could provide
grounds
for
determining the
Respondent to be in default and
to
affirm the citation and proposed penalties
of $7956 arising out of OSHA inspection number 1440641
in their entirety without a hearing
pursuant to Commission Rule 101, 29 C.F.R. § 2200.101 .

The Respondent did not file an answer or responsive pleading by the May 15th extension (or at
anytime
thereafter) and did not call in for the telephone conference on May 29, 2020.

On June 1, 2020, the undersigned issued an order that was captioned “ Order
to Show Cause to
Arch-Tech Construction
Why
the
Notice of Contest Should Not Be Dismissed , and Notice of Telephone Conference on June 30, 2020” (Order to Show Cause). The Order to Show Cause directed the Respondent to file a written response to the Order to Show Cause no later than June 19, 2020, and in that response show cause “ why the Respondent should not be declared to be in default and the citation and proposed penalties should not be affirmed due to the Respondent’s failure to proceed as provided by the Commission Rules of Procedure and participate as required.” The Order to Show Cause also scheduled another mandatory telephone conference for 10:30 a.m. EDT on June 30, 2020, for the purpose of addressing the Respondent’s anticipated response to the Order to Show Cause. The Order to Show Cause contained the following notice in the final numbered paragraph:

C ompliance.
The Respondent should take notice that if the Respondent fails to respond to this order, continues to fail to file its answer, or fails to participate in the telephone conference on June 30, 2020,
the
alleged violations
arising out of inspection number 1440641
may be affirmed and
the
proposed penalties
of
$7956
may be assessed against
R espondent without a hearing
under Commission Rule 101(a), 29 C.F.R. § 2200.101(a).

The Order to Show Cause was sent to the Respondent in two separate mailings—one by regular mail and the other by certified mail, return receipt requested. The regular mailing was not returned by the postal service undelivered and is thus presumed to have been delivered. See
Legille
v. Dann , 544 F.2d 1 (D.C. Cir. 1976) (noting that there is a rebuttable presumption that the postal service has delivered to the addressee a
properly addressed,
stamped
and deposited
mailing).

The Respondent did not file a response to the Order to Show Cause by the time specified in the order (June 19, 2020) or anytime thereafter. The Respondent did not call in for the telephone conference that was conducted as scheduled on June 30, 2020. The attorney for the Secretary called in for the Secretary and reported having had no subsequent contact with Mr. Borelli or anyone else representing the Respondent.

Discussion

Commission Rule 101(a), codified at 29 C.F.R. § 2200.101(a), provides in part as follows:

Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the . . . Judge, the party may be declared to be in default . . . on the initiative of . . . the Judge, after having been afforded an opportunity to show cause why the party should not be declared to be in default . . . . Subsequently, . . . the Judge, in [his] discretion, may enter a decision against the defaulting party
. . . .

The Commission “follows the policy in law that favors deciding cases on their merits.” D HL
Express ,
Inc. , 21 BNA OSHC 2179, 2180 (No. 07-0478, 2007). Rule 101(a) nevertheless permits the harsh sanction of dismissal of a notice of contest
where
a
party
has displayed
a “pattern of disregard”
of
Commission proceedings.

Philadelphia Constr .
Equip .,
Inc. , 16 BNA OSHC 1128, 1131
(No. 92-899, 1993);
Architectural Glass & Metal Co. , 19 BNA OSHC 1546, 1547 (No. 00-0389, 2001);
see also
Commission Rule 101(b), 29 C.F.R. § 2200.101(b) (a default sanction may be set aside “[f]or reasons deemed sufficient by the Commission or
the
Judge
and upon motion … expeditiously made”).

The Respondent’s failure to call in for four consecutive telephone conferences, failure to file an answer or other appropriate pleading responsive to the complaint even
after being provided additional time to do so, and failure to respond to the Order to Show Cause, together reflect a pattern of disregard of Commission proceedings that warrants an order of default. The Order to Show Cause and the notice dated June 1, 2020 made it abundantly clear that if the Respondent continued to fail to participate, the undersigned would likely issue an order of default that would have the effect of affirming the citation in its entirety.

It is impossible to move this case forward to hearing in view of the Respondent’s continuing failure to participate. There is no reasonable basis to conclude that if the hearing that is scheduled for November 5, 2020 were to be conducted that the Respondent would participate in any prehearing proceedings or would appear at a hearing to defend the matters. Cf.
Commission Rule 64(a), 29 C.F.R. § 2200.64(a) (providing that “[t]he failure of a party to appear at a hearing may result in a decision against that party”). The only reasonable conclusions to be drawn from the Respondent’s continuing failure to participate are that the Respondent has willfully defaulted and abandoned its case before the Commission, or that the Respondent is disdainful of the orders of the Commission, or both.

The Respondent’s failure to participate is prejudicial to the administration of justice and to the Secretary’s enforcement responsibilities under the OSH Act. The Commission cannot countenance the prejudicial effects of the Respondent’s continuing failure to participate in the proceedings. Dismissal of the Respondent’s notice of contest is the necessary and appropriate remedy to cure the prejudicial impact of the Respondent’s persistent and continuing failures.

O RDER

For these reasons, the Respondent is determined to be in DEFAULT, and its notice of contest is DISMISSED. The two-item serious citation issued to the Respondent on October 30, 2019 in connection with Inspection Number 1440641 and the proposed penalties for each citation item are AFFIRMED in their entirety. The hearing that had been scheduled to commence on November 5, 2020 is cancelled.

SO
ORDERED.

_/s/ William S. Coleman_____

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: July 13, 2020

"

1
Counsel for the Secretary told the judge during the April 28, 2020 telephone conference that he had last spoken with Respondent’s owner around mid-March and since that conversation, Secretary’s counsel had left voice messages for the owner but had not spoken with him.

2
Respondent’s owner claims that his company is not the employer of the employee who is the subject of the fall protection citation, as his company does not have any employees. He also asserts that he attempted to prove to OSHA that the employee in question was employed by a subcontractor and that he had ensured that a personal fall arrest system was on the job and in use by the subcontractor.

3
A pparently a dding to this confusion
is Respondent’s claim
that the Secretary’s counsel told the owner that if on March 26, 2020,
the subcontractor involved in the case w ere
found to be in violation of the cited fall protection provisions, the citation issued to Respondent would be withdrawn. Although the Secretary has prosecutorial discretion to cite more than one employer on a multi-employer worksite,
see
Cuyahoga Valley R y . Co. v. UTU , 474 U.S. 3, 5-7 (1985) , the owner’s apparent belief that Respondent’s citation could be withdrawn during this timeframe aligns with his claimed attempts to contact Secretary’s counsel numerous times from March 30 through May 13, 2020.

4
We pass no judgment on the veracity of Respondent’s allegations and leave it to the judge to determine whether dismissal remains an appropriate sanction. We also leave it to the judge to determine the best way to proceed—for instance,
whether
scheduling a telephone conference or remote hearing, or requesting written
sworn affidavits
from the parties concerning the claims in Respondent’s petition may be warranted.