Simpson Roofing Company

Plain-English summary

Simpson Roofing Company contested two OSHA citations, but neither the company nor its attorney appeared at the scheduled hearing. After waiting about an hour, the Administrative Law Judge dismissed the notice of contest as a default under Commission Rule 62(a) and affirmed the citations. The company's attorney then wrote the Judge explaining that his client had been injured in an accident the night before and that he had made repeated attempts to reach the court and the Newark District Director to relay that he could not attend. On review, the Commission held that Rule 62(c) lets it excuse a failure to appear for good cause, and it found good cause here, especially since the Secretary did not dispute the attorney's account. The Commission set aside the Judge's decision, reinstated the notice of contest in the interest of justice and fairness, and remanded the case for further proceedings.

Decision snapshot

• Cited standard(s): None enumerated; the decision applies Commission Rules of Procedure 62(a) and 62(c) governing failure to appear at a hearing.
• Outcome: Remanded. The Judge's default dismissal was set aside, the notice of contest reinstated, and the case sent back for further proceedings.
• Key point: A default dismissal for failing to appear can be excused under Rule 62(c) when the party shows good cause, and reinstatement is especially appropriate where the opposing party does not dispute the explanation.

Full text (OSHRC public release)

Docket No. 76-1841

SIMPSON ROOFING COMPANY

OSHRC Docket No. 76-1841

Occupational Safety and Health Review Commission

September 15, 1977

Before CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

William J. DeMarco, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

An October 8, 1976 decision of Judge Richard DeBenedetto is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge DeBenedetto dismissed Respondent's notice of contest due to Respondent's failure to appear at the scheduled hearing. We hereby set aside the Judge's decision, and remand for further proceedings.

Respondent contested two citations issued to it by the Secretary of Labor, and a hearing was scheduled. Notice of the hearing was received by both parties. Neither Respondent's attorney nor any other representative of Respondent was present in the room at the time designated for the start of the hearing. The hearing was delayed for approximately one hour to give Respondent additional time to appear. When Respondent still had not appeared at the expiration of that time, the hearing was convened by the Judge and the Secretary's attorney moved for what he characterized as a "default judgment" pursuant to Commission Rule 62(a). n1 In support of his motion, the Secretary's attorney stated that he had telephoned the office of Respondent's attorney on the morning of September 8, 1976 in order to discuss the case. He left a message requesting a return call after being told that Respondent's attorney was not then in his office but would return shortly. The Secretary's attorney further stated that his call never was returned.

• • • Footnotes - - -

n1 Commission Rule 62(a) reads:

Subject to the provisions of paragraph (c) of this rule, the failure of a party to appear at a hearing shall be deemed to be a waiver of all rights except the rights to be served with a copy of the decision of the Judge and to request Commission review pursuant to Rule 91 hereof.

Commission Rule 62(c) reads:

The Commission or the Judge, upon a showing of good cause, may excuse such failure to appear. In such event, the hearing will be rescheduled.

• • • End Footnotes - - -

Relying on Commission Rule 62(a), the Judge granted the Secretary's motion, dismissed Respondent's notice of contest, and affirmed the two citations. Respondent's attorney subsequently wrote the Judge a letter, dated four days after the date of the Judge's decision, stating that he had "made at least five attempts to contact the Court on the date this matter was scheduled to inform them that on the previous evening my client was injured in an accident." The letter, in part, continues:

I spoke to the District Director of Newark on two occasions that morning and informed him that I was unable to reach the Court. He assured me, however, that he would convey the messae to you, and I gave him a telephone number where I could be reached and told him I would be at that number to receive the return call.

Prior to receiving the return call, I called him again and expressed to him that the hours were passing and I was anxious. He assured me that I need not wait at the telephone any longer because he would take care of the matter.

Mr. Magenheimer (the Secretary's attorney) is incorrect when he states that he called me on September 8 and I did not return his call. Unfortunately, most days I do not return to my office until 4:30 or 5:00 p.m. When I attempted to reach Mr. Magenheimer on September 9, he was not in his office. I left the message with his secretary, but she told me she would not be able to reach him until the next morning, and from that date of September 9 to the present, I have not heard anything from Mr. Magenheimer.

Review was directed on the issue of whether Respondent's notice of contest should be reinstated in view of the representations made in Respondent's letter to the Judge. Commission Rule 62(c) (see footnote 1) authorizes the Commission to excuse a party's failure to appear, and reopen a hearing upon the showing of good cause. 29 C.F.R. 2200.62(c). After considering the representations made in the October 12, 1976 letter of Respondent's attorney to the Judge, we conclude that good cause has been demonstrated. n2 We therefore reinstate Respondent's notice of contest in the interest of justice and fairness. See Ribblesdale, Inc., No. 13191, 5 OSHC 1179, 1977-78 OSHD para. 21,654 (March 23, 1977).

• • • Footnotes - - -

n2 We note that the Secretary has not challenged the factual statements made in the letter or otherwise opposed reinstatement of the notice of contest.

• • • End Footnotes - - -

Accordingly, the Judge's decision is set aside, and the case is remanded for further proceedings.