Ozark Wood Gallery
Default remains on merits, but employee-status jurisdiction requires a hearing
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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 chief judge dismissed Ozark Wood Gallery's notice of contest because the business did not file an answer or respond to a show-cause order. On review, Ozark asserted that it had never had any employees, while the Secretary's complaint alleged approximately six employees at the time of inspection. The Commission held that Ozark's procedural failures waived its right to contest the merits. However, whether Ozark was an employer under the Act was a jurisdictional question that could be raised at any time, and the existing record could not resolve it. The Commission remanded for evidence and findings on employee status. If jurisdiction existed, the citation items would be affirmed based on the default.
Decision snapshot
- Cited standard(s): None enumerated; the order concerns default and employer-status jurisdiction.
- Outcome: Remanded. The merits default remained, but the case returned to the judge to decide whether Ozark had employees and was subject to Commission jurisdiction.
- Key point: Procedural default waives merits defenses, but it does not prevent a party from raising a genuine jurisdictional claim that it was never an employer under the Act.
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 20036-3419
.
.
SECRETARY OF LABOR, ..
Complainant,
v. OSHRC Docket No. 94-3292
.
.
.
OZARK WOOD GALLERY, l
.
Respondent.
ORDER
On March 2, 1995, the Chief Administrative Law Judge issued an order dismissing
the notice of contest filed by respondent Ozark Wood Gallery (C’Ozark”)for its failure to file
an answer or respond to an order to show cause. In its petition for discretionary review,
Ozark alleges that it “has no employees and never has had any employees.” However, the
Secretary alleges in his complaint that Ozark had approximately six employees at the time
of the inspection.
We do not condone Ozark’s failure to file an answer or its failure to respond to the
judge’s order to show cause and find that, in so doing, Ozark has waived its right to contest
the merits of the citation. However, in alleging that it “has no employees and never has had
any employees,” Ozark raises a question of jurisdiction, which can be raised at any time
during Commission proceedings. Willamette Iron & Steel Co., 9 BNA OSHC 1900, 1904,
1981 CCH OSHD 7 25,427; p.31,699 (No. 76-1201, 1981); Fed. R. Civ. P. 12(h)(3). The record
is insufficient to resolve this issue. We therefore remand this case to the judge to take
1995 OSHRC No. 37
2
additional evidence and to make the necessary findings of fact and conclusions of law on the
jurisdictional issue. See, e.g. Loomis Cabinet Co., 15 BNA OSHC 1635, 199 1-93 CCH
OSHD 7 29,689 (No. 88-2012, 1992), afd, 20 F.3d 938 (9th Cir. 1994). In the event the
judge finds that jurisdiction exists, then the citation items shall be af!firmedbased on Ozark’s
failure to file an answer and its failure to respond to the judge’s order to show cause.
JisbmJd
&
Stuart E. Weisberg
Chairman
Velma Montoya
Commissioner
Dated: June 9, 1995
NOTICE OF REMAND ORDER
The attached Remand Order by the Occupational Safety and Health Review
Commission was issued and served on the following on June 9, 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
Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105
Elton Botard
Ozark Wood Gallery
Highway 63 South
Brandsville, MO 65688
Irving Somrner
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
FOR THE COMMISSION
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003-l 9
SECRETARY OF LABOR
Complainank
v. OSHRC DOCKET
NO. 94-3292
OZARK WOOD GALLERY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the abve referenced case was
docketed with the Commission on Marcr 3, 1995. The decision of the Judge
will become a final order of the Commission on April 3, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
March 23., 1995 in order to rmit sd cient time for its review. See
Commission Rule 91,29 C.r .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
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
having questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: March 3, 1995
DOCKET NO. 94-3292
NOTICE IS GIVEN TO THE FOUWING:
Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the Sof l
citor, U.S. DOe
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick Housh, Esq.
Re lonal Solicitor
O&e of the Solicitor U.S. DOL
1210 City Center Sqube
1100 Main Street
Kansas City, MO 64105
c
Elton Botard
Ozarks Wood Gallery
Highway 63 South
Brandsville, MO 65688
Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Heal B
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00110467891:07
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
..
SECRETARY OF LABOR, 0.
Complainant,
v. Docket No. 94-3292
OZARK WOOD GALLERY
Respondent,
..
..
ORDER
On 12/20/94 the undersigned issued an ORDER TO SHOW CAUSE to the
Respondent as to why his Notice of Contest should not be dismissed for failure to file an
answer to the complaint as required by the Commission Rules of Procedure. The
Respondent failed to reply to the ORDER. His actions demonstrate either that he has
abandoned the case or treats the Rules of Procedure of the Commission with disdain. This
cannot be countenanced as it seriously impedes the administration of justice.
Accordingly, the Notice of Contest filed by the Respondent is dismissed. The
Secretary’s citation(s) and proposed penalties are AFFIWED in all respects.
IRVING SOlbIMER
Chief Judge, OSHRC
DATE: MAR 0 2 f!#!ji
Washington, D.C.
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