Daak Corporation

Plain-English summary

Daak Corporation did not appear for its scheduled hearing, and the ALJ granted the Secretary a default judgment. After hearing the Secretary's evidence, the judge affirmed 14 construction citations and assessed $7,200 in total penalties. Daak's vice president then petitioned for review and made factual allegations intended to explain the company's absence. The Commission did not decide the citation merits. It remanded the case for the ALJ to resolve those factual allegations and determine whether good cause excused the failure to appear. If good cause existed, the ALJ was directed to reschedule the hearing.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.100(a)(1), 1926.105(a), 1926.152(a)(1), 1926.500(b)(1), 1926.500(b)(2), 1926.500(d)(1), 1926.1051(a), 1926.1053(b)(1), 1926.1060(a), 1903.2(a)(1), 1926.59(e)(1), 1926.59(g)(1), and 1926.59(h)
• Outcome: The $7,200 default judgment was remanded for a good-cause determination and a new hearing if Daak's absence was excusable.
• Key point: Before a default becomes controlling, factual allegations supporting good cause for a missed hearing must be resolved by the judge.

Full text (OSHRC public release)

                              .

                                    UNITED   STATESOF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                       1825 K STREET N.W.
                                           4TH FLOOR
                                   wASHINGTON D.C. 2OU06-1246

SECRETARY OF LABOR,

                    Complainant,

             v.                                            OSHRC Docket No. 92-386

DM     CORPORATION,

                    Respondent.



                                             ORDER
      In a Decision and Order dated December        15, 1992, Review Commission Chief Judge
Irving Sommer granted a motion made by the Secretary for a default judgment against Daak

Corp. for the company’s failure to appear at the November 5, 1992 hearing in the case. The
judge also, after taking evidence from the Secretary at the hearing, affirmed citations issued
d Y

by the Secretary to Daak and assessed a total penalty of $7,200.
By letter of December 2, 1992, William J. Klueber, vice president of Daak, appearing
pro se, petitioned for review of the judge’s actions, making certain factual allegations in
support of his petition. Review was granted by Commissioner Montoya on January 19, 1993
for the Commission to consider whether Daak was entitled to reinstatement of the hearing.
 2

  We remand this case to Judge Sommer to resolve the factual allegations made by

Daak and determine whether or not there is “good cause,” under 29 C.F.R. $ 220064(c),
to excuse Da&s failure to appear at the hearing and, if fizere
is, to reschedule the hearing.

                                                     Edwin G. Foulke, Jr.
                                                     Chairman




                                                     Donald G. Wiseman
                                                     Commissioner




                                                     Velma Montoya
                                                     Commissioner

Dated: February 4, 1993
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006- 1246

SECRETARY OF LABOR,

        Complainant,

  v.                             ..           Docket No. 92-0386

DAAK CORPORATION, ..
.
Respondent.

                         NOTICE OF REMAND ORDER

The attached Remand Order by the Occupational Safety and Health Review Commission was
issued on Februarv 4, 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO
WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL
WITEl ml3 APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE
OF THIS DECISION. See Section 11 of the Occupational Safety and Health Act sf 1970, 29
U.S.C. 0 660.

                                              FOR THE COh4MISSION

Februarv 4, 1993
Date Ray H. barling, Jr.
Executive Secretary
Docket No. 92-386

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Douglas Klueber, President
William J. Klueber, Vice-President
Daak Corporation
80 Milltown Road
Union, NJ 07083

Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417B
1825 K Street, N.W.
Washington, D.C. 20006-1246
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-l 246

                                                                                         FAX:
                                                                                         COM (202) 63rJ306
                                                                                         RS 634-4006
                                        ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 92-0386
..

DAAK CORPORATION, ..
..
Respondent. ..
..

Appearances:

           Evan Barouh, Esq.
                  U.S. Department d Labor
                  New York, New York
                          For Complainant

Before: Administrative Law Judge Irving Sommer

                              DECISION AND ORDER

   By a duly issued Notice of Hearing issued on October          19, 1992, Respondent      was

notified that the hearing in this matter was scheduled to take place on November 5, 1992
in Courtroom 208, U.S. Tax Court, 26 Federal Plaza, New York, New York. Respondent
failed to appear at the scheduled hearing or to offer any reason for its failure to appear.
Complainant appeared and presented evidence concerning the alleged violations and
the penalties assessed. Complainant moved for a default judgement and submitted that it
had proved a prima facie case of the violations alleged. Based on the evidence of record,
I find that the complainant has proved its case, and its motion for a default is granted, It is
found as fact that Respondent was in violation of the Act as alleged in the complaint.
 Respondent is thus found to have been in violation of 29 CFR 1926.20(b)( 1); 29 CFR
1926.1OO(a)(l>; 29 CFR 1926.105(a); 29 CFR 1926.152(a)( 1); 29 CFR 1926500(b)( 1);
29 CFR 1926.500@)(2); 29 CFR 1926.500(d)(l); 29 CFR 1926.1051(a); 29 CFR 1926.1053
(b)(l); 29 CFR 1926.1060(a); 29 CFR 1903.2(a)(l); 29 CFR 192659(e)(l); 29 CFR
1926.59(g)( 1); 29 CFR 1926.59(h).
The following penalties are found to be appropriate:
Citation no. 1, item 1, $750; Citation no. 1, item 2, $450; Citation no. 1, item
3, $1500, Citation no. 1, item 4, $ 600; Citation no. 1, item 5, $750; Citation no. 1, item 6,
$450; Citation no. 1, item 7, $1050; Citation no. 1, item 8, $450; Citation no. 1, item 9, $450;
Citation no. 1, item 10, $450; Citation no. 2, item 1, $300; Citation no. 2, item 2, $0.;
Citation no. 2, item 3, $00.; Citation no. 2, item 4, $-O-. The total penalties assessed is
$7200.
FINDINGS OF FACT
AI1 findings of fact necessary for a determination of all relevant issues have been
made. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

                                 CONCLUSIONS      OF LAW
      ‘1
       l     Respondent was, at all times pertinent hereto, an employer within the meaning

of Section 3(5) of the Occupational Safety and Health Act of 1970,29 U.S.C. Sections 651-
678, 1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over
the parties and the subject matter.
3. The citations issued to the Respondent on or about December 17, 1991, are
AFFIRMED in their entirety. Civil penalties of $7200 are ASSESSED therefor.

                                                           IRVING SOMMER
                                                           Judge

DATED: DECls o,
Washington, D.C.
 UNITED STATES OF AMERICA
I OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006~t246

SECRETARY OF LABOR
                    Complainant,
         v.
DAAK CORPORATION
             Respondent.


                       NOTICE OF DOCKETING
                OF ADMINISTRATIVE LAW JUDGE’S DECISION
     The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 17, 1992. The decision of the Judge
will become a final order of the Commission on January 19, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
January 6, 1993 in order to ermit sufficient time for its review. See
Commrssion Rule 91, 29 C. f .R. 2200.91.
   All further pleadings or communications               regarding this case shall be
addressed to:

                        Executive Secretary
                        Occupational Safety and Health
                         Review Commission
                        1825 K St. N.W., Room 401
                        Washington, D.C. 20006- 1246
Petitioning parties shall also mail a copy to:
                        Daniel J. Mick, Esq.
                        Counsel for Regional Trial Litigation
                        Office of the Solicitor, U.S. DOL
                        Room S4004
                        200 Constitution Avenue, N.W.
                        Washington, D.C. 20210

If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation wil 1 represent the Department of Labor. hY party
having questions about revie w rights may contact the Co mmission’ S Executive
Secretary or call (202) 634-7950 .




Date: December    17, 1992

DOCKET NO. 92-0386
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Dou las Klueber, President
Daa & Corporation
80 Milltown Road
Union, NJ 07083

Irvin Sommer
Chie f Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417/A
1825 K Street, N.W.
Washington, DC 20006 1246

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