Richard A. Pulaski Construction Company, Inc.
Default set aside because employer lacked a chance to show cause
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This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
The administrative law judge dismissed Richard A. Pulaski Construction Company, Inc.'s notice of contest after the company missed an agreed telephone prehearing conference. The record showed that Pulaski had previously filed a witness statement, promptly contacted the Commission after the scheduling order, and later misunderstood the rescheduled call date. The company also attempted to call on the order's original Friday deadline but reached a recording and believed the office was closed for Good Friday. The Commission held that its rules required an opportunity to show cause before a default could be entered, and the file showed no such opportunity. It set aside the default order, which had affirmed a citation and $975 penalty, and remanded for further proceedings.
Decision snapshot
- Cited standard(s): None enumerated; the Commission order addresses default procedure.
- Outcome: Remanded. The Commission set aside dismissal of the notice of contest and returned the case for proceedings under its procedural rules.
- Key point: A judge may not enter default for failure to proceed without first giving the party an opportunity to show cause, especially when the record shows timely attempts to participate.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003-l 9
PHONE
COM(202)606-5100
rrS(202)606-6100
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 94-1973
..
..
RICHARD A. PULASKI
CONSTRUCIION COMPANY, INC., i
Respondent. :
..
ORDER
On April 14,1995, Administrative Law Judge Richard DeBenedetto issued a “Default
Order” dismissing the notice of contest filed by Richard A. Pulaski Construction Company,
Inc., for failure “to comply with the deadline for arranging a telephone prehearing
conference, as directed by the order entered on April 11, 1995.” The April 11 Order
directed each party “to contact the office of the undersigned no later than 3:00 p.m., on
Friday, April 14,1995, to arrange for a prehearing telephone conference . . . .” Our review
of the official file reveals, however, that very early in the proceedings, on July 15, 1994,
Pulaski filed a prehearing statement listing a witness it wanted to call and that immediately
after the judge’s April 11 order, on April 12, 1995, Pulaski contacted the Commission’s
Boston office in an attempt to arrange a prehearing conference. Inasmuch as a conference
call involving both parties could not be accomplished on April 12, the parties agreed that
they would telephone the judge on the next day between 10:00 and 11:00 a.m. According
to Judge DeBenedetto, Pulaski “failed to contact this office at any time since the April 12
communication.” Pulaski states in his letter requesting relief, however, that he “did not
understand the date of the call to be Thursday, 4-13-95,” and that when he called on Friday,
1995 OSHRC No. 38
2
April 14, “the [message] tape came on” and he interpreted this to mean that the office was
closed because it was “a holiday [Good Friday].”
Under Commission Rule 41(a), 29 C.F.R. 0 2200.41(a), before a judge may declare
a party in default for failure to plead or otherwise proceed under the Commission’s rules,
the judge must ensure that the party was “afforded an opportunity to show cause why he
should not be declared to be in default.” We find nothing in the official file to indicate thatI...
Pulaski was given this opportunity. We also find that Pulaski’s actions constitute sufficient
reason for excusing the failure to meet the judge’s deadline, particularly where there is no
indication that the judge attempted to phone Pulaski on April 13 or any time prior to issuing
a “Default Order” on April 14. We therefore set aside the judge’s “Default Order” and
remand the case for further proceedings consistent with the Commission’s procedural rules.
Stuart E. Weisberg
Chairman
Commissioner
Dated: June 28, 1995
1995 OSHRC No. 38
NOTICE OF ORDER AND REMAND
The attached Order Of Remand by the Occupational Safety and Health Review
Commission was issued and served on the following on June 28, 1995.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
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
Richard A. Pulaski, President
Richard A. Pulaski Construction
Co., Inc.
436 Princeton Avenue
Mercervill, NJ 08619
Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
FOR THE COMMISSION
I
g.0~
Ray H! Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM (202) 6064100
m(202)60&5100
SECRETARY OF LABOR
Complainant,
V, OSHRC DOCKET
NO. 94-1973
RICHARD A PULASKI’CONSTRUCTION CO.
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 April 21, 1995. The decision of the Judge
will become a final order of the Commission on May 22, 1995 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 etition should be received by the Executive Secretary on or before
May l!, 18 95 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
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 by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: April 21, 1995
DOCKET NO. 94-1973
NOTICE IS GIVEN TO THE FOLLOWING:
Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014
Richard Pulaski, President
Richard A. Pulaski Construction
Co., Inc.
436 Princeton Avenue
Mercerville, NJ 086 19
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an B Health
Review Commissron
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
00109913517:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION
.
SECRETARY OF LABOR, ..
Complainant, OSHRC
. Docket No. 94-1973
v. ..
RICHARD A. PULASKI CONSTRUCTION
CO., INC.,
Respondent.
.
DEFAULT ORDER
On April 11, 1995, an order was entered and faxed to the parties directing each of
them to contact this office to arrange a prehearing telephone conference. Each party
telephoned this office on April 12 but because of the unavailability of one party or the other
at the same time, a conference call with both parties could not be accomplished on April
- It was therefore arranged and each party agreed to telephone the office of the
undersigned on the following day, April 13 during the hour from 1O:OOa.m. to 11 :00 a.m.
so that the telephone conference could be effectuated.
In accordance with the agreement, the Secretary contacted this office on several
occasions during the morning on April 13 but respondent has failed to contact this office at ’
any time since the April 12 communication. Accordingly, it is
ORDERED that having failed to comply with the April 14 deadline for arranging a
prehearing telephone conference, as directed by the order entered on April 11, 1995,
respondent’s notice of contest is dismissed. It is further
ORDERED that the June 2, 1994, contested citation is affirmed and a total penalty of $975
is assessed.
Judge, OSHRC
Dated: April 14, 1995
Boston, Massachusetts
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